General Terms & Conditions of Sales & Delivery for AESKU.DIAGNOSTICS GmbH & Co. KG

Terms and conditions of delivery, payment and use of software of Aesku.Diagnostics GmbH & Co. KG (Revised 07/2013)

§ 1  GENERAL

(1) All deliveries and services by Aesku.Diagnostics GmbH & Co. KG (hereinafter referred to as "AESKU") shall be made and rendered exclusively on the following terms of delivery and payment. These arrangements shall also apply to making software available for use.

(2) Deviating terms and conditions of the buyer are hereby explicitly opposed. Such terms and conditions shall be binding upon AESKU only if AESKU has accepted them in writing. This requirement of consent shall apply in any case, for example also in the case that AESKU without reservation effects delivery to the buyer, having full knowledge of the latter's terms and conditions.

(3) By placing the order and accepting the goods delivered by AESKU, the buyer confirms its agreement with AESKU's terms and conditions.

(4) Legally relevant statements and notifications which the buyer is obligated to give to AESKU subsequent to entering into the contract (e. g. setting a time limit, notification of defects, statement of rescission or reduction) shall be made in writing in order to be valid.


§ 2  OFFER AND DELIVERY

(1) All offers made by AESKU shall always be without obligation and non-binding, unless they are explicitly described as binding or include a specific time limit for acceptance; AESKU's written confirmation of an order shall constitute the basis of the contract and determine the scope of the delivery. This shall also apply in such case that the buyer has requested a specific offer.

(2) Orders placed by the buyer shall be binding upon it. Acceptance may be stated either in writing (e. g. by confirmation of the order) or by delivering the goods to the buyer.

(3) Obvious errors, mistakes in printing, calculation, spelling and miscalculations shall not be binding upon AESKU and shall not entitle the buyer to any claims for damages.


§ 3  PRICES AND PAYMENT

(1) All quoted prices are given in EUROS ex works plus packaging, the statutory value-added tax in effect at the time of delivery, customs duties in case of export deliveries as well as fees and other public levies.

(2) In the case of a sales shipment (§ 5 subsection 1), the buyer shall bear the shipping charges ex warehouse and the expenses of transport insurance which the buyer may have requested. Transport and any other packaging materials in accordance with the German Regulation on Packaging [Verpackungsverordnung] shall not be taken back by AESKU, they shall become the property of the buyer; pallets shall be excluded.

(3) Unless otherwise agreed, the purchase price shall be due and payable within 14 days from invoice date and delivery or acceptance of goods respectively.


§ 4  TIME OF DELIVERY, DELAY IN DELIVERY

(1) The delivery period shall be stipulated individually or specified by AESKU upon acceptance of the order respectively.

(2) If AESKU is unable to adhere to binding delivery periods for reasons which AESKU is not responsible for (non-availability of performance), AESKU shall without delay inform the buyer hereof and at the same time of the expected new delivery period. Should the performance be not available within the new delivery period either, then AESKU shall be entitled to withdraw from the contract in whole or in part; a consideration already made by the buyer shall be reimbursed by AESKU without delay. As used here, a case of non-availability of performance shall in particular be AESKU's delayed receipt of supplies from its own subcontractors, if and when AESKU has concluded a matching cover transaction, no fault can be attributed to either AESKU or its subcontractors, or AESKU is under no obligation for the procurement in a particular case.

(3) The occurrence of AESKU's delayed delivery is governed by statutory provisions. In each case, however, a reminder by the buyer shall be mandatory. If AESKU gets behind schedule with its delivery, the buyer may claim a flat-rate compensation for its damage caused by the delay. For each completed calendar week of the delay, the flat-rate compensation for damage shall be 0.5 % of the net price (declared value of goods), altogether, however, not exceed 5 % of the declared value of the goods delivered late. AESKU shall reserve the right to show that the buyer has not incurred a loss at all or only a loss substantially less significant than the above-mentioned flat-rate amount.

(4) The rights of the buyer pursuant to § 9 and the statutory rights of AESKU, in particular in the case of an exclusion of the obligation to perform a contract (e. g. based on the impossibility or hardship of performance and/or supplementary performance), shall remain unaffected.


§ 5  DELIVERY, PASSING OF RISK

(1) Delivery shall be effected ex warehouse, the location of which also constitutes the place of performance. Upon request and at the expense of the buyer, the goods shall be delivered to a different destination (sales shipment). AESKU shall itself determine the type of shipment (in particular carrier, shipping route, packaging).

(2) The risk of accidental destruction and accidental deterioration of the goods shall pass to the buyer no later than at the time of transfer. In the case of a sales shipment, the risk of accidental destruction and accidental deterioration of the goods as well as the risk of delay shall pass already at the time of delivering the goods to the forwarding agent, carrier, or the person or institution otherwise designated to effect shipment. This shall also apply if AESKU assumes the shipping charges in a particular case. Insofar as an acceptance has been agreed upon, this shall then be relevant to the passing of risk. The statutory regulations of the German Law on Contracts for Work and Services [Werksvertragsrecht] shall in all other respects apply to an agreed acceptance respectively. The buyer's default of acceptance shall be considered equivalent to the delivery of goods or taking delivery respectively.


§ 6  RETENTION OF TITLE

(1) Until all of AESKU's present and future receivables arising out of the sales contract and current business relations (secured receivables) have been paid in full, AESKU shall retain title to the goods sold.

(2) Goods delivered under retention of title may neither be pledged to third parties nor assigned by way of security prior to the full payment of the secured receivables. The buyer shall without delay inform AESKU in writing when and as far as third parties have access to merchandise owned by AESKU.

(3) In the case of the buyer's breach of contract, in particular of non-payment of the purchase price due, AESKU shall pursuant to statutory regulations have the right to rescind the contract and based on the retention of title and rescission to demand the return of the goods. If the buyer does not pay the purchase price due, AESKU may assert these rights only if AESKU has previously given the buyer a reasonable time limit for payment to no avail, or if setting such a time limit is dispensable under the statutory provisions.

(4) The buyer shall be entitled to resell and/or process the goods delivered under retention of title in the proper course of business. In this case, the following provisions shall additionally apply.

(a) The retention of title shall cover the products which result from the processing, mixing or combining of the goods from AESKU at their full value, with AESKU being considered to be the manufacturer. If upon processing, mixing or combining goods of a third party the latter's ownership continues to exist, then AESKU shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same rules shall apply to the resulting product as to the goods delivered under retention of title.

(b) Claims against third parties arising out of the resale of the goods or the product shall be assigned as security by the buyer to AESKU already at this time in total or in the amount of AESKU's possible co-owner's share respectively pursuant to the above-mentioned subsection. AESKU shall accept the assignment. The obligations of the buyer in subsection 2 shall also apply with regard to the assigned claims.

(c) Aside from AESKU, the buyer shall remain authorized to collect the receivable. AESKU shall not collect the receivable as long as the buyer meets its financial obligations owed to AESKU, does not default on payments, no application for the opening of insolvency proceedings has been made, and no other financial incapacity exists. Should this be the case, however, AESKU may then demand that the buyer disclose the assigned claims and their debtors, furnish all information necessary for the collection, hand over the appropriate records, and inform the debtors (third parties) of the assignment.

(d) If the realizable value of the securities exceeds AESKU's claims by more than 10 %, AESKU shall upon the buyer's request release securities of AESKU's choice.


§ 7  USE OF SOFTWARE

For software of any type for which AESKU holds a license, the buyer shall against payment be granted a non-exclusive, non-transferable right of use for an indefinite period of time on a specific hardware product or on one to be stipulated in a particular case respectively. The right of use shall also include the documentation appertaining to the software. AESKU shall remain the owner of the copyright as well as all other intellectual property rights. The right to make copies shall only be granted for the purpose of saving data. Copyright notices may not be removed.


§ 8  CLAIMS BASED ON DEFECTS

(1) Statutory provisions shall apply to the buyer's rights in the case of material defects and defects in title (including wrong and short delivery as well as improper installation or faulty installation instructions), unless the following provides otherwise. The statutory special provisions on final delivery of goods to a consumer (supplier recourse pursuant to §§ 478, 479 of the German Civil Code [Bürgerliches Gesetzbuch, BGB]) shall in all cases remain unaffected.

(2) AESKU's liability for defects is above all based on the agreement reached on the quality of the goods. As agreement on the quality of the goods shall be considered the product specifications (also those of the manufacturer) which were made available to the buyer before its order placement or were included in the contract in the same way as these terms and conditions. Customary deviations and deviations which occur based on statutory provisions or which represent technical improvements as well as the replacement of components by equivalent parts shall be permissible insofar as they do not interfere with the use for the purpose intended under the contract.

(3) Analysis systems manufactured by AESKU are designed only for use with analysis products of Aesku.Diagnostics GmbH & Co. KG. AESKU shall not give any warranty whatsoever for the compatibility with analysis products of third party manufacturers.

(4) If, beyond the regulation in § 8 subsection 3, the quality has not been agreed upon, the statutory regulation shall determine whether or not a defect exists (§ 434 subsection 1 sentence 2 and 3 of the German Civil Code). AESKU shall not, however, assume any liability for public comments by the manufacturer or other third parties (e. g. advertising statements).

(5) The buyer's claims based on defects require that it has met its statutory duties to inspect the goods and to give notice of defects (§ 377 of the German Commercial Code [Handelsgesetzbuch, HGB]). If a defect is detected during inspection or subsequently, then AESKU shall be notified hereof in writing without delay. The notification shall be considered to be without delay if it is given within two weeks, in which case the timely dispatch of the notification shall suffice for meeting the deadline. Irrespective of this duty to inspect the goods and give notice of defects, the buyer shall within two weeks of delivery give notice of obvious defects (including wrong and short delivery) in writing, in which case here, too, the timely dispatch of the notification shall suffice for meeting the deadline. If the buyer omits the proper inspection and/or notice of defects, AESKU's liability for the unreported defect shall be excluded.

(6) If the delivered goods are defective, the buyer may initially at its choice request as supplementary performance the removal of the defect (subsequent improvement) or delivery of goods free of defect (substitute delivery). If the buyer does not state which of the two options it chooses, AESKU may then set a reasonable time limit for it to do so. If the buyer does not choose an option within the time limit, then the option shall pass to AESKU.

(7) AESKU shall be entitled to make the supplementary performance owed contingent upon the buyer paying the purchase price due. The buyer shall be entitled, however, to withhold in proportion to the defect a reasonable part of the purchase price.

(8) The buyer shall give AESKU the time and opportunity necessary for the supplementary performance owed, in particular, make the rejected goods available for the purpose of examination. In the case of a substitute delivery, the buyer shall return the defective goods to AESKU pursuant to statutory provisions. The supplementary performance shall neither include the removal of the defective goods nor the renewed installation if the installation was not AESKU's duty in the first place.

(9) The expenses necessary for the purpose of the examination and supplementary performance, in particular costs of transportation, infrastructure, labor and materials (not: costs of removal and installation), shall be borne by AESKU if a defect does actually exist. Should the buyer's demand for the defect removal turn out to be unjustified, however, AESKU may demand that the buyer reimburse the costs resulting herefrom.

(10) In urgent cases, e. g. in the event of operational safety being jeopardized or for averting disproportionate damages, the buyer shall have the right to remove the defect itself and to request compensation from AESKU for the expenses objectively necessary for this purpose. Before taking such self-help measures, the buyer shall without delay give AESKU, if possible prior, notice. The right to self-help shall not exist if AESKU were entitled to refuse a corresponding supplementary performance pursuant to statutory provisions.

(11) If the supplementary performance has failed or a reasonable time limit for a supplementary performance to be set by the buyer has expired without any success or is dispensable pursuant to statutory provisions, the buyer may rescind the sales contract or reduce the purchase price. In the case of an insignificant defect, however, the right of rescission shall not exist.

(12) The buyer's claims for damages and compensation for futile expenses respectively shall exist only in accordance with § 9 and shall be excluded in all other respects.


§ 9  LIABILITY

(1) Insofar as these terms and conditions, inclusive of the following stipulations, do not provide otherwise, AESKU shall in the case of breaching contractual and non-contractual obligations be liable pursuant to relevant statutory provisions.

(2) AESKU shall be liable for damages - no matter what the legal ground - in the case of intent and gross negligence. In the case of simple negligence, AESKU shall be liable only

(a) for damages resulting from death, injury to body and health,

(b) for damages resulting from the breach of an essential contractual obligation (an obligation the fulfillment of which makes the proper performance of the contract at all possible and the adherence to which the contracting party regularly relies on and may rely on); in this case, however, AESKU's liability shall be limited to the reparation of the foreseeable, typically occurring damage.

(3) The limitation on liability resulting from subsection 2 shall not apply if AESKU has fraudulently concealed a defect or has guaranteed the quality of the goods. The same shall apply to claims of the buyer pursuant to the German Product Liability Act [Produkthaftungsgesetz].

(4) The buyer may rescind or terminate the contract because of a breach of obligation which does not constitute a defect only if AESKU is responsible for breaching the obligation. An unrestricted right of termination of the buyer (in particular pursuant to §§ 651, 649 of the German Civil Code) shall be excluded. In all other respects, the statutory requirements and legal consequences shall apply.


§ 10  LIMITATION

(1) Notwithstanding § 438 subsection 1 no. 3 of the German Civil Code, the general limitation period is one year from delivery for claims based on material defects and defects in title. If an acceptance has been agreed upon, the limitation period begins upon acceptance.

(2) The above-mentioned limitation period of the German sales law shall also apply to the buyer's contractual and non-contractual claims for damages based on a defect in the goods, unless the application of the regular statutory limitation (§§ 195, 199 of the German Civil Code) would in a particular case lead to a shorter period of limitation. The limitation periods of the German Product Liability Act shall in any case remain unaffected. Otherwise, the statutory limitation periods shall pursuant to § 9 apply exclusively to the damage claims of the buyer.


§ 11  VENUE

For all disputes arising out of the contractual relationship, venue shall be Mainz if the buyer is a merchant entered as such in the Commercial Register, a legal person under public law or a special fund under public law, or has its residence or business head office outside of the Federal Republic of Germany. AESKU shall also have the right to take legal action at the place of the buyer's business head office.


§ 12  APPLICABLE LAW

The relations between AESKU and the buyer shall be exclusively governed by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.

 

 

General Terms & Conditions of Sales & Delivery for AESKU.Systems GmbH & Co. KG

Terms and conditions of delivery, payment and use of software of Aesku.Systems GmbH & Co. KG (Revised 07/2013)

§ 1  GENERAL

(1) All deliveries and services by Aesku.Systems GmbH & Co. KG (hereinafter referred to as "AESKU") shall be made and rendered exclusively on the following terms of delivery and payment. These arrangements shall also apply to making software available for use.

(2) Deviating terms and conditions of the buyer are hereby explicitly opposed. Such terms and conditions shall be binding upon AESKU only if AESKU has accepted them in writing. This requirement of consent shall apply in any case, for example also in the case that AESKU without reservation effects delivery to the buyer, having full knowledge of the latter's terms and conditions.

(3) By placing the order and accepting the goods delivered by AESKU, the buyer confirms its agreement with AESKU's terms and conditions.

(4) Legally relevant statements and notifications which the buyer is obligated to give to AESKU subsequent to entering into the contract (e. g. setting a time limit, notification of de-fects, statement of rescission or reduction) shall be made in writing in order to be valid.


§ 2  OFFER AND DELIVERY

(1) All offers made by AESKU shall always be without obligation and non-binding, unless they are explicitly described as binding or include a specific time limit for acceptance; AESKU's written confirmation of an order shall constitute the basis of the contract and determine the scope of the delivery. This shall also apply in such case that the buyer has requested a specif-ic offer.

(2) Orders placed by the buyer shall be binding upon it. Acceptance may be stated either in writing (e. g. by confirmation of the order) or by delivering the goods to the buyer.

(3) Obvious errors, mistakes in printing, calculation, spelling and miscalculations shall not be binding upon AESKU and shall not entitle the buyer to any claims for damages.


§ 3  PRICES AND PAYMENT

(1) All quoted prices are given in EUROS ex works plus packaging, the statutory value-added tax in effect at the time of delivery, customs duties in case of export deliveries as well as fees and other public levies.

(2) In the case of a sales shipment (§ 5 subsection 1), the buyer shall bear the shipping charges ex warehouse and the expenses of transport insurance which the buyer may have requested. Transport and any other packaging materials in accordance with the German Regulation on Packaging [Verpackungsverordnung] shall not be taken back by AESKU, they shall become the property of the buyer; pallets shall be excluded.

(3) Unless otherwise agreed, the purchase price shall be due and payable within 14 days from invoice date and delivery or acceptance of goods respectively.


§ 4  TIME OF DELIVERY, DELAY IN DELIVERY

(1) The delivery period shall be stipulated individually or specified by AESKU upon ac-ceptance of the order respectively.

(2) If AESKU is unable to adhere to binding delivery periods for reasons which AESKU is not responsible for (non-availability of performance), AESKU shall without delay inform the buyer hereof and at the same time of the expected new delivery period. Should the performance be not available within the new delivery period either, then AESKU shall be entitled to withdraw from the contract in whole or in part; a consideration already made by the buyer shall be re-imbursed by AESKU without delay. As used here, a case of non-availability of performance shall in particular be AESKU's delayed receipt of supplies from its own subcontractors, if and when AESKU has concluded a matching cover transaction, no fault can be attributed to either AESKU or its subcontractors, or AESKU is under no obligation for the procurement in a par-ticular case.

(3) The occurrence of AESKU's delayed delivery is governed by statutory provisions. In each case, however, a reminder by the buyer shall be mandatory. If AESKU gets behind schedule with its delivery, the buyer may claim a flat-rate compensation for its damage caused by the delay. For each completed calendar week of the delay, the flat-rate compensation for dam-age shall be 0.5 % of the net price (declared value of goods), altogether, however, not exceed 5 % of the declared value of the goods delivered late. AESKU shall reserve the right to show that the buyer has not incurred a loss at all or only a loss substantially less significant than the above-mentioned flat-rate amount.

(4) The rights of the buyer pursuant to § 9 and the statutory rights of AESKU, in particular in the case of an exclusion of the obligation to perform a contract (e. g. based on the impossibil-ity or hardship of performance and/or supplementary performance), shall remain unaffected.


§ 5  DELIVERY, PASSING OF RISK

(1) Delivery shall be effected ex warehouse, the location of which also constitutes the place of performance. Upon request and at the expense of the buyer, the goods shall be delivered to a different destination (sales shipment). AESKU shall itself determine the type of shipment (in particular carrier, shipping route, packaging).

(2) The risk of accidental destruction and accidental deterioration of the goods shall pass to the buyer no later than at the time of transfer. In the case of a sales shipment, the risk of ac-cidental destruction and accidental deterioration of the goods as well as the risk of delay shall pass already at the time of delivering the goods to the forwarding agent, carrier, or the person or institution otherwise designated to effect shipment. This shall also apply if AESKU assumes the shipping charges in a particular case. Insofar as an acceptance has been agreed upon, this shall then be relevant to the passing of risk. The statutory regulations of the German Law on Contracts for Work and Services [Werksvertragsrecht] shall in all other respects apply to an agreed acceptance respectively. The buyer's default of acceptance shall be considered equivalent to the delivery of goods or taking delivery respectively.


§ 6  RETENTION OF TITLE

(1) Until all of AESKU's present and future receivables arising out of the sales contract and current business relations (secured receivables) have been paid in full, AESKU shall retain title to the goods sold.

(2) Goods delivered under retention of title may neither be pledged to third parties nor as-signed by way of security prior to the full payment of the secured receivables. The buyer shall without delay inform AESKU in writing when and as far as third parties have access to mer-chandise owned by AESKU.

(3) In the case of the buyer's breach of contract, in particular of non-payment of the purchase price due, AESKU shall pursuant to statutory regulations have the right to rescind the contract and based on the retention of title and rescission to demand the return of the goods. If the buyer does not pay the purchase price due, AESKU may assert these rights only if AESKU has previously given the buyer a reasonable time limit for payment to no avail, or if setting such a time limit is dispensable under the statutory provisions.

(4) The buyer shall be entitled to resell and/or process the goods delivered under retention of title in the proper course of business. In this case, the following provisions shall additionally apply.

(a) The retention of title shall cover the products which result from the processing, mixing or combining of the goods from AESKU at their full value, with AESKU being considered to be the manufacturer. If upon processing, mixing or combining goods of a third party the latter's ownership continues to exist, then AESKU shall acquire co-ownership in proportion to the in-voice values of the processed, mixed or combined goods. In all other respects, the same rules shall apply to the resulting product as to the goods delivered under retention of title.

(b) Claims against third parties arising out of the resale of the goods or the product shall be assigned as security by the buyer to AESKU already at this time in total or in the amount of AESKU's possible co-owner's share respectively pursuant to the above-mentioned subsec-tion. AESKU shall accept the assignment. The obligations of the buyer in subsection 2 shall also apply with regard to the assigned claims.

(c) Aside from AESKU, the buyer shall remain authorized to collect the receivable. AESKU shall not collect the receivable as long as the buyer meets its financial obligations owed to AESKU, does not default on payments, no application for the opening of insolvency proceed-ings has been made, and no other financial incapacity exists. Should this be the case, howev-er, AESKU may then demand that the buyer disclose the assigned claims and their debtors, furnish all information necessary for the collection, hand over the appropriate records, and inform the debtors (third parties) of the assignment.

(d) If the realizable value of the securities exceeds AESKU's claims by more than 10 %, AESKU shall upon the buyer's request release securities of AESKU's choice.


§ 7  USE OF SOFTWARE

For software of any type for which AESKU holds a license, the buyer shall against payment be granted a non-exclusive, non-transferable right of use for an indefinite period of time on a specific hardware product or on one to be stipulated in a particular case respectively. The right of use shall also include the documentation appertaining to the software. AESKU shall remain the owner of the copyright as well as all other intellectual property rights. The right to make copies shall only be granted for the purpose of saving data. Copyright notices may not be removed.


§ 8  CLAIMS BASED ON DEFECTS

(1) Statutory provisions shall apply to the buyer's rights in the case of material defects and defects in title (including wrong and short delivery as well as improper installation or faulty in-stallation instructions), unless the following provides otherwise. The statutory special provi-sions on final delivery of goods to a consumer (supplier recourse pursuant to §§ 478, 479 of the German Civil Code [Bürgerliches Gesetzbuch, BGB]) shall in all cases remain unaffect-ed.

(2) AESKU's liability for defects is above all based on the agreement reached on the quality of the goods. As agreement on the quality of the goods shall be considered the product specifi-cations (also those of the manufacturer) which were made available to the buyer before its order placement or were included in the contract in the same way as these terms and condi-tions. Customary deviations and deviations which occur based on statutory provisions or which represent technical improvements as well as the replacement of components by equivalent parts shall be permissible insofar as they do not interfere with the use for the pur-pose intended under the contract.

(3) Analysis systems manufactured by AESKU are designed only for use with analysis prod-ucts of Aesku.Diagnostics GmbH & Co. KG. AESKU shall not give any warranty whatsoever for the compatibility with analysis products of third party manufacturers.

(4) If, beyond the regulation in § 8 subsection 3, the quality has not been agreed upon, the statutory regulation shall determine whether or not a defect exists (§ 434 subsection 1 sen-tence 2 and 3 of the German Civil Code). AESKU shall not, however, assume any liability for public comments by the manufacturer or other third parties (e. g. advertising statements).

(5) The buyer's claims based on defects require that it has met its statutory duties to inspect the goods and to give notice of defects (§ 377 of the German Commercial Code [Han-delsgesetzbuch, HGB]). If a defect is detected during inspection or subsequently, then AESKU shall be notified hereof in writing without delay. The notification shall be considered to be without delay if it is given within two weeks, in which case the timely dispatch of the notifi-cation shall suffice for meeting the deadline. Irrespective of this duty to inspect the goods and give notice of defects, the buyer shall within two weeks of delivery give notice of obvious de-fects (including wrong and short delivery) in writing, in which case here, too, the timely dis-patch of the notification shall suffice for meeting the deadline. If the buyer omits the proper inspection and/or notice of defects, AESKU's liability for the unreported defect shall be ex-cluded.

(6) If the delivered goods are defective, the buyer may initially at its choice request as sup-plementary performance the removal of the defect (subsequent improvement) or delivery of goods free of defect (substitute delivery). If the buyer does not state which of the two options it chooses, AESKU may then set a reasonable time limit for it to do so. If the buyer does not choose an option within the time limit, then the option shall pass to AESKU.

(7) AESKU shall be entitled to make the supplementary performance owed contingent upon the buyer paying the purchase price due. The buyer shall be entitled, however, to withhold in proportion to the defect a reasonable part of the purchase price.

(8) The buyer shall give AESKU the time and opportunity necessary for the supplementary performance owed, in particular, make the rejected goods available for the purpose of exam-ination. In the case of a substitute delivery, the buyer shall return the defective goods to AESKU pursuant to statutory provisions. The supplementary performance shall neither in-clude the removal of the defective goods nor the renewed installation if the installation was not AESKU's duty in the first place.

(9) The expenses necessary for the purpose of the examination and supplementary perfor-mance, in particular costs of transportation, infrastructure, labor and materials (not: costs of removal and installation), shall be borne by AESKU if a defect does actually exist. Should the buyer's demand for the defect removal turn out to be unjustified, however, AESKU may de-mand that the buyer reimburse the costs resulting herefrom.

(10) In urgent cases, e. g. in the event of operational safety being jeopardized or for averting disproportionate damages, the buyer shall have the right to remove the defect itself and to request compensation from AESKU for the expenses objectively necessary for this purpose. Before taking such self-help measures, the buyer shall without delay give AESKU, if possible prior, notice. The right to self-help shall not exist if AESKU were entitled to refuse a corre-sponding supplementary performance pursuant to statutory provisions.

(11) If the supplementary performance has failed or a reasonable time limit for a supplemen-tary performance to be set by the buyer has expired without any success or is dispensable pursuant to statutory provisions, the buyer may rescind the sales contract or reduce the pur-chase price. In the case of an insignificant defect, however, the right of rescission shall not exist.

(12) The buyer's claims for damages and compensation for futile expenses respectively shall exist only in accordance with § 9 and shall be excluded in all other respects.


§ 9  LIABILITY

(1) Insofar as these terms and conditions, inclusive of the following stipulations, do not provide otherwise, AESKU shall in the case of breaching contractual and non-contractual obligations be liable pursuant to relevant statutory provisions.

(2) AESKU shall be liable for damages - no matter what the legal ground - in the case of intent and gross negligence. In the case of simple negligence, AESKU shall be liable only

(a) for damages resulting from death, injury to body and health,

(b) for damages resulting from the breach of an essential contractual obligation (an obligation the fulfillment of which makes the proper performance of the contract at all possible and the adherence to which the contracting party regularly relies on and may rely on); in this case, however, AESKU's liability shall be limited to the reparation of the foreseeable, typically oc-curring damage.

(3) The limitation on liability resulting from subsection 2 shall not apply if AESKU has fraudu-lently concealed a defect or has guaranteed the quality of the goods. The same shall apply to claims of the buyer pursuant to the German Product Liability Act [Produkthaftungsgesetz].

(4) The buyer may rescind or terminate the contract because of a breach of obligation which does not constitute a defect only if AESKU is responsible for breaching the obligation. An un-restricted right of termination of the buyer (in particular pursuant to §§ 651, 649 of the Ger-man Civil Code) shall be excluded. In all other respects, the statutory requirements and legal consequences shall apply.


§ 10  LIMITATION

(1) Notwithstanding § 438 subsection 1 no. 3 of the German Civil Code, the general limitation period is one year from delivery for claims based on material defects and defects in title. If an acceptance has been agreed upon, the limitation period begins upon acceptance.

(2) The above-mentioned limitation period of the German sales law shall also apply to the buyer's contractual and non-contractual claims for damages based on a defect in the goods, unless the application of the regular statutory limitation (§§ 195, 199 of the German Civil Code) would in a particular case lead to a shorter period of limitation. The limitation periods of the German Product Liability Act shall in any case remain unaffected. Otherwise, the statuto-ry limitation periods shall pursuant to § 9 apply exclusively to the damage claims of the buyer.


§ 11  VENUE

For all disputes arising out of the contractual relationship, venue shall be Mainz if the buyer is a merchant entered as such in the Commercial Register, a legal person under public law or a special fund under public law, or has its residence or business head office outside of the Fed-eral Republic of Germany. AESKU shall also have the right to take legal action at the place of the buyer's business head office.


§ 12  APPLICABLE LAW

The relations between AESKU and the buyer shall be exclusively governed by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the Interna-tional Sale of Goods of 11 April 1980 (CISG) shall not apply.