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Terms and Conditions

Baumeister Mediasoft Engineering

General terms and conditions for goods and services provided by Baumeister Mediasoft Engineering ("BME").

Revision: January 2002

Contents

1Scope
2Sales, Conclusion of Contract and Commercial Protection
3Delivery Period and Extent
4Point of Delivery, Risk Transfer
5Prices
6Settlement of Accounts
7Services
8Contract of Manufacture
9Software Licence
10Warranty
11Liability
12Retention of Title
13Agreed Law, Jurisdiction and Place of Performance
14General Clause

1 Scope

These general terms and conditions apply exclusively to all products and services supplied by BME. Arrangements amending these conditions must be stated in writing. Verbal agreements are non-committal. The customers terms and conditions are not subject to the terms of this contract, even if these conditions are not expressly contradicted.

2 Sales, Conclusion of Contract and Commercial Protection

2.1 Quotes provided by BME are not binding, unless otherwise agreed in writing.

2.2 Orders constitute a valid contract only after written confirmation of BME. Illustrations within the internet, catalogues, sales brochures as well as declarations of weights, measurements and other consistencies are not binding.

2.3 Standard values used in the trade should be assumed in the absence of any particular reference in the contract note, technical data, material used, etc. Notification in the case of a variation will only be given if expressly guaranteed characteristics are affected. BME reserves the right to make reasonable technical changes even after the order has been confirmed.

2.4 For illustrations, drawings, cost estimates and other documents BME reserves all rights, right, title and interest in the property and the copyright. It should not be made available to third parties without the prior written permission of BME. If an order is not placed with BME and if requested by BME, all documentation including any copies that may have been made must be returned to BME without delay.

2.5 It is the responsibility of the customer to check all data contained in catalogues, sales brochures and published documentation that the intended application is suitable and appropriate, before acceptance and use. This also applies to the choice of suitable materials.

2.6 BME is not duty-bound to check the correctness and/or legal conformity of the requirements and/or assumptions of the customer, as this is the sole responsibility of the customer. This applies in particular in the case of possible litigation for a breach of commercial protection laws.

2.7 The customer guarantees that the execution of the contract does not result in any breach of commercial law by the use of components, drawings or samples supplied by the customer or third parties. The customer will conduct any possible defence procedures at his own expense and will compensate BME for any expenses resulting from such action.

2.8 Drawings, developments and discussion papers, which are generated in the course of contractual negotiations as an advisory service, are not binding.

2.9 Requested samples shall be billed by BME according to expense incurred.

3 Delivery Period and Extent

3.1 The delivery period starts at the date of the written contract note from BME or, alternatively, when all technical and commercial questions have been resolved, and it terminates with the dispatch or the notification of dispatch. Keeping to delivery schedules assumes the keeping of obligations by the customer, particularly in respect to payments.

3.2 Customer initiated amendments to the supply contract cause the delivery schedule to recommence with the date of the revised confirmation of the order.

3.3 BME does not accept responsibility for any delivery delays due to acts of God or events not caused or predicted by BME, such as non-issue of permits by government authorities, strikes, etc. Delivery schedules are extended by the extent of the difficulty.

3.4 BME accepts liability for claims caused by delivery delays, or impossibility of performance, only in the case of willful intent or gross negligence. Liability for indirect or consequential losses is excluded. Under exclusion of further claims, a compensation of 0,5% is agreed for every completed week, but in no event shall the aggregate of such compensation exceed a total of 5% of the price of goods delivered.

3.5 Part delivery is deemed acceptable at minor inconvenience to the customer.

3.6 If dispatch or delivery is delayed at customers request by more than one month after notice was given of the readiness for dispatch, the customer may be charged storage costs for each month thereafter to the amount of 0.5% of the price of goods ordered, but in no event shall the aggregate storage charges exceed a total of 5% of the price. The parties to the contract are at liberty of furnish proof of higher or lower storage costs.

4 Point of Delivery, Risk Transfer

4.1 Delivery takes places ex works at the expense and risk of the customer. The means of delivery is chosen at the discretion of BME according to usual practice, unless the customer has made a particular request.

4.2 In the case of delivery without any installation or erection, the risk in respect of the delivered items, even if free delivery has been agreed to, transfers to the customer, forwarding agency or freight carrier, at the point of leaving our factory or warehouse. If acceptance by the customer is delayed, the risk is transferred at the point of readiness to deliver, even if the delay of acceptance occurs after readiness to deliver. BME may insure delivery against breakage, transport or fire damage at the request and at cost of the customer.

4.3 In the case of delivery with installation or erection, the risk in respect of the delivery transfers to the customer on the day of commissioning.

5 Prices

5.1 All prices are quoted ex works, excluding freight/postage, packaging, insurance and including statutory VAT. Cost for commissioning, installation, adjustment and similar services are itemised on the account.

6 Settlement of Accounts

6.1 The agreed price is to be paid in full in EURO immediately on receipt of the invoice or equally valid request of payment, unless other arrangements have been agreed to. Risk and payment costs are born by the customer.

6.2 The customer has the right to counter demands only in the case of indisputable or legally determined demands.

6.3 Costs incurred to ascertain credit, i.e. Letters of Credit in dealings with foreign countries, or similar references, are at the expense of the customer.

7 Services

7.1 The cost of services is calculated for each part of, or full working hour, in accordance with the actual time spent (valid at the time the service is rendered, as specified in the BME price list). In addition, the customer agrees to pay the costs of travel both to and from the service location, and daily or overnight expenses, as specified in travel procedure of BME.

7.2 The customer must ensure that the following requirements are met in the case of installations: The preparatory steps required for starting the installation must be completed so that the installation can be started immediately on the arrival of the BME employees and can be performed without interruption. The customer must have all the necessary facilities available for the installation, must help in operating all connected third-party devices and (if necessary) must allow the work to continue even outside normal working hours.

7.3 The customer must bear all additional costs that may arise if installation or start-up is delayed through no fault on behalf of BME.

7.4 The Customer shall attest to BME at daily intervals, the hours worked by the assembly personnel and he shall immediately confirm in writing, the completion of assembly, erection or commissioning.

8 Contract of Manufacture

The following provisions apply to technical development services carried out by BME, for which an acceptance is agreed upon:

8.1 The services to be provided are governed by the specification, which was mutually agreed as being part of the contract. Changes or additions to the specification require written agreement in which the financial implications of the changes or additions must also be settled.

8.2 If deadlines are missed because of the complexity of order processing, periods of grace must always be assessed with regard to subcontracting difficulties. Changes or additional requests on the part of the customer will extend due dates in accordance with the additional time spent on these.

9 Software Licence

9.1 In accordance with the regulations in 69 ff of the German Copyright Act [UrhG] and the subsequent provisions, the customer acquires the unlimited, non-exclusive right to use software produced by BME.

9.2 The software may be used only on the number of workstations for which a licence was acquired. Duplication, reverse engineering, decompilation, disassembly, changes, additions or other interventions are only permitted under the requirements of 69 d Sections 2 and 3 and 69 e of the German Copyright Act.

9.3 The software and documentation may not be made available to third parties or used for the purposes of third parties. Third parties may not be allowed to view the documentation.

9.4 In the case of unmodified standard software the customer is only entitled to a transfer of rights if the buyer completely accepts all obligations of the licence contract, the customer demonstrates, in writing, to BME the transfer and names the buyer, hands over all original data media and licensing documentation, and the customer does not withhold any copies of the software. BME can request an upgrade fee from the buyer to update the software. The rights in accordance with Section 9.1 are non-transferable.

9.5 No further rights to the software will be transferred to the customer.

9.6 A penalty of EURO 50,000 is forfeited for every breach of the licence conditions.

10 Warranty

10.1 The customer should check goods immediately after receipt for possible defects. Obvious defects are to be reported to BME within 5 working days in writing, hidden defects within 5 days after detection. In the case of neglect or delayed reproof a warranty claim against BME is exempt.

10.2 BME renders warranty within 12 months after transfer of risk. In cases under warranty, BME has the discretion to repair or replace defects. This discretion is not waived even after repeated unsatisfactory repairs. BME must be given appropriate time and access to affect repairs.

10.3 The customer has the right to cancel the purchase order (termination of order) or demand a price reduction (decrease in the order value), if the defect cannot be repaired in an appropriate period of time.

10.4 In the case of defects, which could have been determined by the customer with little inconvenience before inclusion or use, all claims under warranty are voided as soon as the product is included or used.

10.5 No warranty claims will be accepted for a predetermined life of products, especially under extreme or unknown operating conditions. Claims for the premature failure of the product are excluded.

10.6 In the case of products, which were manufactured to customer drawings and specifications, BME warranty only extends to include compliance with the specification. Legal liability according to the product liability laws as well as liability for intentional and gross negligence is not affected.

10.7 The warranty does not cover exiguous changes of the agreed composition, exiguous interference of usability, normal wear and tear or damage arising after the transfer of risk, from faulty or negligent handling, excessive strain, unsuitable equipment, inappropriate use outside the specifications or from particular external influences not assumed under the contract, or from non-reproducible software errors. The warranty does not cover modifications or repairs carried out improperly by the customer or by third parties.

10.8 The warranty does not cover defects that do not or only inessentially impact on the value or merchantability of goods.

10.9 Contribution claims only exist if the consumer claiming is entitled and only within the legal extent. Contribution claims are the liability of the regress beneficiary, with particular attention to reproof responsibilities. Contribution claims do not exist for goodwill arrangements, which are not agreed with BME.

11 Liability

11.1 All customer claims for damages and expenditure compensation, including claims due to illegal action, compensation for direct or consequential damages caused by defect, compensation for culpable neglect of associated contractual duties, or compensation for the loss of income, are excluded, whatsoever the legal justification. This does not apply if BME, its executive employees or its vicarious agents are guilty of intentional or gross negligence or personal injury, or if BME is liable due to the non-compliance with assured characteristics of the product, or if BME is in breach of a major contractual duty or the described liability under the provisions of the product liability laws.

11.2 In the case of a major breach of contractual liability, which does not involve intent or gross negligence, or in cases of personal injury, or a failure of the consistency guarantee, the liability shall be limited to compensation to the extent of assessable damage that is typical in these contractual contexts.

11.3 Materials or equipment, which the customer is supplying to BME for the manufacture of products ordered by the customer, are only insured against theft. BME is liable for the loss or deterioration of such materials or equipment only in the case of intent or gross negligence.

11.4 In the case of valid compensation claims by the customer, these demands are subject to a limitation period as specified in Clause 10.2.

12 Retention of Title

12.1 The finished product (from now on called the joint product) remains the property of BME until paid in full and all due demands, which BME derives from the business relationship with the customer, have been met. During this period of joint ownership neither seizure nor transfer nor ceding of the demands may take place on the part of the customer without the express permission of BME. BME is to be notified without delay in case of a seizure by a third party.

12.2 If the customer processes the joint product into a new product, the processed article remains the property of BME. The transfer of ownership is excluded under Federal Law (BGB) 950. By processing, mixing or reconstructing the joint product with other products, not the property of BME, BME gains shared ownership of the resultant product in proportion of the monetary value of the joint product and other component products at the time of processing. It is the duty of the customer to store and control the resultant product with appropriate care.

12.3 Therefore, under these conditions, the resultant product is treated the same as the joint product. In the case of a sale of the resultant joint product, the customer reduces his claim on the product value by the amount proportioned according to the purchase value of the joint product of BME in respect to all other products contained in the resultant product. In the case of the sale of the resultant product, together with other components not owned by BME for a total all-inclusive price the customer shall pay BME the proportion of the total price that represents the share of BME.

12.4 The customer also accedes to a claim of BME in respect to any third party, if the joint product is incorporated in real estate property.

12.5 The customer is empowered, unless the power is revoked, to satisfy claims resulting from the resale in the course of normal business transactions. Furthermore, BME has the right to independently seek an order, if the customer has not fulfilled his contractual duty, in particular to settle due accounts on time. The customer must name, if requested, the debtors of outstanding claims and show the amounts owing. The enforcement of the reservation of proprietary rights and the restitution request in particular are only a cancellation of a contract if this is expressly described as a cancellation of a contract.

12.6 BME undertakes upon request by the customer to free the customer from any obligation to accede to claims of the supplier exceeding 20% of the actual value of the goods.

13 Agreed Law, Jurisdiction and Place of Performance

13.1 The laws of the Republic of Ireland are exclusively valid, excluding UN Commercial Laws (UNCITRAL-Commercial Laws). Contract language is English or German.

13.2 In the case of the customer being a purchasing agent, a legal entity or a corporate body under public law a special asset under public law (of the Republic of Ireland), and also for all disputes involving documents, exchange and cheque transactions, the legal venue and place of performance for both parties is Dublin. BME has the right to take legal action against the customer in any other legal court.

14 General Clause

Invalidation of any one of the clauses in this contract does not affect the validity of other paragraphs. Should a clause be or become ineffective, the contractual parties to this contract shall endeavour to replace the ineffective clause with a new agreed clause, to reflect as fully as possible the commercial and legal purpose.

Baumeister Mediasoft Engineering » Company Profile » Terms & Conditions

Terms and Conditions • © 2020 Manfred Baumeister • Updated: 29 October 2008, 14:10 [UTC]

Baumeister Mediasoft Engineering, Clontarf, Dublin 3, D03 HA22, Ireland
© 2020 Manfred Baumeister

Terms and Conditions - English Version Allgemeine Gesch�ftsbedingungen - Deutsche Version