Performance by the CONTRACTOR takes place exclusively according to the conditions defined as follows. Conditions of the CLIENT are not binding except in such instances where the CONTRACTOR has expressly given his written agreement, and are also not admitted when the CONTRACTOR, upon receiving them, fails to expressly repeat his opposition to them, or if, in full knowledge of the contrary conditions of the CLIENT, unconditionally completes performance.

1.    Quotations and Samples
1.1    Quotations made by the CONTRACTOR remain non-binding until conclusion of a contract.
1.2    Collateral agreements and modifications by the CLIENT shall only be valid after written confirmation by the CONTRACTOR. The CONTRACTOR only included in the price mentioned in the quotation when this is expressly confirms such collateral agreements and modifications in writing.
1.3    The CONTRACTOR shall retain the proprietary rights and copyright to any information and documentation whatsoever included in, or submitted with, quotations.

2.    Cooperation obligations of the CLIENT
2.1    The CONTRACTOR shall receive all components, documentation, information and data specified by the CLIENT within the scope of supply and required for completion of performance. The CONTRACTOR on or before the date on which completion of performance begins shall receive the components, documentation, information and data in their final and binding form. The CONTRACTOR shall be under no obligation to inspect for defects and deficiencies the components, documentation, information and data provided before starting completion of performance.
2.2    The CLIENT shall also retain the components, documentation, information and data furnished to the CONTRACTOR, so that in case of damage of loss, reconstruction is possible.

3.    Prices
3.1    Prices are quoted net, plus the currently legally applicable rate of Value Added Tax. Unless otherwise agreed, prices apply EXW -INCOTERMS 2000- of the CONTRACTOR, excluding packing, freight, insurance and customs duties. Prices assume that the CLIENT meets the obligations defined in Section 2.
3.2    Should the CLIENT fail to meet the obligations defined in Section 2, the expenses incurred by the CONTRACTOR will be invoiced separately.
3.3    The expenses arising from payments are to be borne by the CLIENT.

4.    Terms of Payment
4.1    Payment of invoices is to be effected net 30 days after the date of invoice. Place of Payment shall be the premises of the CONTRACTOR. The date for ascertaining whether payments are effected on time shall be the date of receipt of payment by the CONTRACTOR.
4.2    The CLIENT shall only have a right to withhold any sum provided that this right is founded on the same contractual relationship as the counter-claim of the CONTRACTOR. Clearing one claim against another is excluded, insofar as the counter-claim is not uncontested or not declared final and absolute.

5.    Time of Performance
5.1    Performance time shall commence after confirmation of the CLIENT’s order by the CONTRACTOR, but not before receipt of any prepayment agreed. Performance time shall be determined to the best of current knowledge on the assumption that the cooperation required from the CLIENT takes place as agreed. Accordingly, named dates are not fixed dates, unless expressly agreed in writing.
5.2    Performance within the agreed time supposes that all technical details are clear, and also that the CLIENT meets his contractual obligations on time.
5.3    Should the CONTRACTOR recognize that the performance time would be exceeded, he shall inform the CLIENT, naming the cause thereof. In such a case, the CONTRACTOR and CLIENT shall agree an extension of the performance time. Should the occurring delay be unacceptable to the CLIENT and be the sole responsibility of the CONTRACTOR, the CLIENT is entitled to cancel the contract. In this case, the CLIENT is obliged to compensate the CONTRACTOR for the expenses already incurred up to that time.

6.    Dispatch and transfer of risk
6.1    Delivery of performance by the CONTRACTOR is to be made EXW - INCOTERMS 2000-, unless otherwise expressly agreed in writing.
6.2    Should dispatch be delayed due to circumstances beyond the control of the CONTRACTOR, risk is transferred to the CLIENT from the day that the supply was ready for dispatch.

7.    Rights of use and industrial patent rights
7.1    The CONTRACTOR shall undertake such measures as are appropriate and reasonable so as to avoid any limitation on use for the CLIENT due to the patent rights of third parties. However, the CONTRACTOR shall provide no guarantee that the performance is free of patent rights of third parties.
7.2    If the CLIENT duly fulfills his contractual obligations, he shall enjoy the rights to the performance of the CONTRACTOR and use of the working results according to the terms of the agreement. All copyright, patent or other protection rights remain the property of the CONTRACTOR, unless there is express written agreement to the contrary. Insofar as working results of the CONTRACTOR bear patentable inventions, the CONTRACTOR grants the CLIENT a non- exclusive License to preferable conditions
7.3    Insofar as the CLIENT should require the use of other protected or unprotected know-how of the CONTRACTOR in order to make use of the performance ordered from the CONTRACTOR, the CONTRACTOR shall concede a non-exclusive and non-transferable right of use to the CLIENT at reasonable and fair conditions. The CONTRACTOR shall advise the CLIENT in advance of any requirement for such a use as may occur.

8.    Warranty
The CONTRACTOR shall execute performance according to the currently valid regulations and technical standards, and guarantees conformity to contract at passing of risk for a period of 12 (twelve) months after passing of risk on the basis of the following assumptions and conditions.
8.1    The CLIENT must give written notice to the CONTRACTOR of any suspected defect or deficiency not later than 12 (twelve) working days after identification of such defects or deficiencies.
8.2    If the performance of the CONTRACTOR is proven to be defective or deficient at passing of risk, the CONTRACTOR is obliged to upgrade the defective or deficient components free of charge, or deliver replacement components, whichever he prefers.
8.3    For completion of all modifications or replacement deliveries deemed necessary by the CONTRACTOR, the CLIENT shall grant the necessary delay and opportunity. It shall remain the decision of the CONTRACTOR whether the making good is to take place at the premises of the CLIENT at the place of use, or at his own premises. At his request, non-accepted components shall be returned to the CONTRACTOR.
8.4    If, despite a two-fold attempt at making good by the CONTRACTOR, the making good or new delivery fails, or is impossibly or unacceptably delayed, the CLIENT is entitled to demand a reduction or conversion.
8.5    The CONTRACTOR provides no warranty, even in the case of defects or deficiencies, if
- the CLIENT has not given notice at acceptance of any defect or deficiency which was apparent at the acceptance inspection, - the CLIENT does not give notice of any identified defect or deficiency within the delay defined in 8.1,
- the CLIENT does not apply, handle or service the performance as specified, - the CLIENT modifies, either himself or through third parties, the performance without permission of the CONTRACTOR, - the cause of the defect or deficiency results from an instruction or materials or components supplied by the CLIENT.
8.6    The CONTRACTOR provides no warranty for the functioning or freedom from faults of products manufactured by the CLIENT or third parties produced on the basis of the performance, unless, before accepting the order, the CONTRACTOR was instructed as to the application and conditions thereof, and the products have been sufficiently tested by the CLIENT.

9.    Liability
9.1    According to these conditions, the CONTRACTOR is liable to the CLIENT for damages inflicted on the CLIENT due to gross negligence or willful behavior for which the CONTRACTOR is responsible, or due to culpable violation of a contractual obligation by the CONTRACTOR, his legal representatives or his co-workers.
9.2    Insofar as gross negligence, or, in violation of an essential contractual obligation, negligence or gross negligence of one of the parties mentioned in 9.1 occurs, the said party shall be liable for foreseeable, typically occurring damage only.
9.3    The CONTRACTOR shall be free of liability insofar as any damage arising is as a consequence of a violation by the CLIENT of his obligations in relation to cooperation, or due to a circumstance for which the CLIENT must bear responsibility.
9.4    Insofar as the CLIENT provides the CONTRACTOR with objects for completion of the performance the CLIENT has ordered from the CONTRACTOR, the CONTRACTOR is only liable for damage to these objects arising from gross negligence or willful behavior by the CONTRACTOR. In this regard, liability is limited to foreseeable damage.

10.    Software Products
Insofar as the scope of supply for the CONTRACTOR includes software products, the following additionally applies:
10.1    The CONTRACTOR draws attention to the fact that current technical standards make it impossible to create computer software in such a way as to ensure error-free operation in all applications and combinations. The software of the CONTRACTOR shall meet the requirements of the contract, if it is basically operable according to the meaning of the product specification and the user’s instructions.
10.2    The removal of defects or deficiencies within the period of warranty is by delivery of revised software, provided that the defect or deficiency occurring is reproducible and occurs in the version last supplied to the CLIENT. The CONTRACTOR is free to decide to supply the revised software within the framework of his standard updates program.
10.3    The CONTRACTOR can demand reimbursement if the CONTRACTOR becomes active after receipt of a complaint, but the CLIENT is unable to demonstrate the presence of a defect or deficiency, and, more especially, to reproduce such a defect or deficiency.
10.4    If the rights conceded to the CLIENT to use the software products of the CONTRACTOR cease (due, for example, to expiry), the CLIENT is entitled to retain a complete set of documentation for the purposes of testing and archiving. All other copies and documentation, including any copies thereof, are to be destroyed by the CLIENT.

11    Secrecy
All knowledge about the CONTRACTOR, his premises and information of any kind about the domain of the CONTRACTOR shall be treated by the CLIENT as confidential and shall not be made available to third parties. Excluded herefrom are non-patented ideas, concepts, experience and techniques, which result from completion of contract and relating exclusively to data processing, as well as information about the CONTRACTOR or his operations which is already in the public domain.
12.    Place of performance/Law/Jurisdiction
12.1    The place of performance for both parties is the premises of the CONTRACTOR.
12.2    The relationship between CLIENT and CONTRACTOR shall be exclusively controlled and construed according to Germany law without regard to its conflicts of law provisions.
12.3    In the event of any disputes arising directly or indirectly out of the contractual relationship, and insofar as no other place of jurisdiction is imperative, Aachen shall be the place of jurisdiction.

13.    Other
13.1    Any modifications made to this contract are only valid in written form. The requirement for written form can only be overridden by written agreement between the parties.
13.2    If any parts of these conditions become null and void, the validity of the remaining conditions shall remain unaffected. Null and void conditions shall be replaced by valid Conditions corresponding as closely as possible to the economic objective, whereby the interests of both parties are protected.
13.3    The CLIENT is aware that the CONTRACTOR stores data electronically.


German AGB's