General terms and conditions of business and payment of PVT Probenverteiltechnik GmbH
 
 
§1: General conditions
All deliveries, services and offers by PVT are rendered exclusively on the basis of these terms and conditions of business. They shall also apply to all future business relations even if they are not stipulated expressly again. These conditions shall be regarded as accepted upon taking delivery of the goods or service at the latest. The validity of divergent general terms and conditions of business is expressly denied. To be effective, all and any collateral agreements, amendments and supplementations must be signed by an assistant manager, authorized officer or a general manager. The subject matter of the contract, documents, proposals, test programs etc. are intellectual property of PVT and must neither be reproduced nor disclosed to third parties. If no contract is brought about, they must be returned or deleted and must not be used.
 
§ 2: Selection of products and services
The customer basically knows the functional features of the system or its software. He shall bear the risk of whether the software or the system corresponds to his wishes and requirements. In cases of doubt, he must seek the advice of PVT’s employees or third parties with a knowledge of the subject prior to conclusion of the contract. The customer’s specifications must be made in writing.

§3: Offers, conclusion of a contract
Our offers are without engagement and not binding. All legal declarations must be confirmed in writing by PVT to be legally effective. Agents and sales employees are not authorized to do this. Nor can they make any binding warranties or collateral agreements for PVT beyond the contract confirmed in writing. PVT is entitled to develop the software or the systems until the date of delivery, in particular to modify or update it / them appropriately.
 
§4: Prices
Unless quoted otherwise, the prices are net amounts in Euro ex works Waiblingen and excl. packaging. Additional deliveries and services shall be invoiced separately. All prices are quoted without turnover tax. Our price lists are subject to change without notice. The prices stated in the order confirmation shall apply in any event. Every single delivery and service shall be invoiced separately. Unless specified to the contrary by PVT in the order confirmation, the price shall be due as follows: payments within 10 days from date of invoice with 2 % discount or 30 days from date of invoice strictly net. Paid labor is immediately payable, i.e. strictly net without discount.
 
§5: Delivery time and time of performance
Dates and periods of delivery must be made in writing and are not binding unless expressly confirmed otherwise in writing. Delays due to force majeure and aggravating circumstances, such as industrial disputes (also in ancillary suppliers), official measures (also foreign and EC agencies) and comparable circumstances (e. g. energy, transport problems or aggravating circumstances at a sub-supplier etc.), entitle PVT to postpone its performance accordingly plus an appropriate start-up time. Additional claims shall not arise for the customer as a result of this. If PVT does not perform in time intentionally, the customer must first grant an addtional period of time of reasonable length. Only afterwards can a customer withdraw from the contract. Traders can refuse the performance of the contract only insofar as that performance was not yet rendered by PVT, nor can traders make any claims beyond the right to rescind the contract. PVT is entitled to partial deliveries and part performances at any time. PVT is entitled to settle partial deliveries and part performances in advance. Payments on account can be demanded by PVT for larger-scale jobs or projects. Upon default, PVT is entitled to charge interest greater than 4% over the basic rate of the European Central Bank from the occurrence of default, notwithstanding the assertion of further damage caused by default. If problems of payment at the customer become known, PVT can grant him a grace period of 10 days and demand advance payment respectively before further performances.
Regardless of this, PVT can withdraw from the contract or demand damages for non-performance. Traders can only offset against claims which are undisputed by PVT or are recognized by declaratory judgement or enforce a right of retention. Place of performance for both parties is Waiblingen.
 
§6: Shipment and passage of risk
PVT reserves the right to determine the transport route and means of transportation. The risk shall pass to the customer upon leaving the factory or warehouse, at the latest however upon delivery to the carrier or person entrusted with transport. If shipment is delayed upon the customer’s request, due to his default, due to the exercise of PVT’s right of retention or another reason for which he is responsible, the risk shall be passed to the customer upon notification (also oral) of the readiness for shipment by PVT at the latest. PVT shall not be liable for damage to goods in transit – unless it can be attributed to intent or gross negligence. This shall also apply to a delivery rendered by PVT itself.
 
§7: Extended retention of title
We, PVT, shall retain title to all goods delivered (retained goods) until the satisfaction of all our present and future claims arising from the business relationship against the purchaser. For current account the retention of title shall be regarded as security for our respective balance claim. This shall also apply when payments are rendered by the purchaser for certain claims. The purchaser may resell the retained goods only in the course of ordinary business dealings on usual business terms and only as long as he meets his financial obligations toward us punctually. The purchaser is obligated to resell on his part the retained goods only under retention of title and to ensure that the claims from such sales can be transferred to us. The purchaser shall herewith assign all claims arising from resale of the retained goods to us. They shall also be used as our security to the same extent as the retained goods. If the purchaser sells the retained goods together with other reserved goods not delivered by us, the assignment of the claim shall apply only to the amount of the invoice amount that results from the resale of our retained goods. If the purchaser includes claims from the resale of retained goods in a current account relationship existing with one of his customers, he shall assign an acknowledged balance or final balance resulting in his favor to the amount that corresponds to the total amount of the claims allocated in the current account relationship from the resale of our retained goods. If the value of the securities existing for us exceeds our secured claims by more than 20 %, we are willing to release securities of our choice upon the purchaser’s request. The purchaser is obligated to inform us immediately of an attachment or other legal or actual impairment or jeopardy of the retained goods or of the other securities existing for us. The purchaser shall undertake to insure the retained goods sufficiently against fire and theft. He shall herewith assign his claims from the insurance contracts to us. In case of default in payment as well as in case of the rescission of the purchase contract, the purchaser herewith declares his assent that we shall confiscate the retained goods at the purchaser or have them confiscated. A revocation of the respective delivery contract is to be seen in the confiscation only if we declare this expressly.
 
§8: Material defects
The customer shall assume a duty to examine and requirement to make a complaint in respect of a defect immediately on receipt of all deliveries and services rendered by PVT in accordance with §§ 377, 378 of HGB (Commercial Code), if a commercial transaction exists for both parties. Defects detected during the examination must be reported to PVT immediately. Hidden defects and defects appearing later must be reported to PVT immediately after their detection. Notifications of a defect must be made in writing. In case of substantial material defects, we as supplier must always be given an opportunity for re-performance (rectification of defects or replacement). Rejected goods may be returned only with our express consent. On demand the customer must however send the goods to PVT or a place named by PVT. In the event of justified notification of defects, any repairs must be borne by PVT. Claims of the customer due to the expenses required for the purpose of re-performance (in particular shipping expenses, transport cost, labor and material costs), are excluded if the expenses increase because the delivery item was subsequently taken to somewhere other than the customer’s branch office, unless this complies with the intended use of the delivery item.
Costs incurred by PVT due to an unjustified notification of defects shall be borne by the customer, unless this is concluded in a separate maintenance contract. Material defect claims are subject to a limitation period of 12 months. The period begins with the passage of risk. The above provisions shall not apply if the law provides longer periods mandatorily (e. g. § 479 I (recourse claim) of the BGB (Civil Code)). Any guaranty is excluded if notification of the material defect was not given immediately after detection; for defects which were not immediately detected due to insufficient examination; if the use or application instructions given by PVT or its supplier were not observed; if the goods were treated, set up, commissioned or used improperly; if the defect occurred only after the passage of risk; if unauthorized third parties or employees took action in the goods (also modification of the software); if it was not possible for PVT to align the software also with regard to a very special application or combination in accordance with the state of the art (this shall apply not only to new application methods in the future but also to those cases which PVT could not detect during production or when the program was acquired). Recourse claims of the customer against PVT shall exist only insofar as the customer has not entered any agreements with his customer that go beyond the legal claims based on defects. The provision regulated in the following in § 9 Damages shall apply to claims for damages. Further or other claims of the customer against PVT and its vicarious agents due to a material defect are excluded.
 
§9: Damages
Claims for damages of the customer, regardless of the cause in law, particularly due to the failure to comply with his duties from the obligation and from tortious acts are excluded. This shall expressly not apply insofar as PVT is mandatorily liable, e. g. according to the Product Liability Act, in cases of intent or gross negligence, due to the injury of life, of body or of health, due to the warranty of the absence of a defect or the infringement of a contractual obligation. Damages for the infringement of essential contractual obligations are however limited to contract-typical, forseeable loss except in cases of intent or gross negligence, or when liability is accepted due to the injury of life, of body or of health, due to the warranty of the absence of a defect or the infringement of a contractual obligation.
 
§10: Software
The software supplied by PVT shall remain the intellectual property of PVT. It is prohibited to pass on this software. The supplied software must not be copied and/or made accessible to third parties. In case of infringement of this, a contractual penalty to the five-fold amount of the entire delivery must be paid to PVT. PVT can however claim a provably higher loss. In accordance with the state of the art, it is not possible to create software so that it works fault-free in all applications and combinations. We are entitled to create modifications and updates of the software at our own discretion.
 
§11 : Drawings
Drawings, illustrations, designs and other written documents (incl. instructions for use) of PVT must neither be reproduced nor given to third parties. They must not be used for any purposes other than the one provided in the contract. If the customer does not require the documents from PVT any more or if they were used in breach of contract, they must be returned completely – including all copies – to PVT free of charge upon request. A right of retention is excluded. A contractual penalty amounting to the price of the entire delivery of PVT shall be agreed on per infringement. The customer can however prove that PVT’s loss is lower (burden of proof is on the customer). PVT can claim a higher loss. The above shall not apply to PVT’s normal advertising material which does not go beyond the general advertising messages.
 
§12: Prohibition of assignment
Claims against PVT may be assigned or pledged only with PVT’s written consent. This shall not apply to claims that are subject to an extended retention of title of third parties.

§13: Export regulations
Insofar as the goods supplied by PVT are subject to export control or other regulations, the customer shall be liable to PVT for obtaining any required consent and for monitoring the observance of relevant provisions up to the final consumer if required. PVT shall not assume any duties or responsibilities in this regard.
 
§14: Concluding provisions
Waiblingen is the exclusive place of jurisdiction for both parties. PVT is however entitled to file an action against the contracting party also at its general place of jurisdiction. Solely the law of the Federal Republic of Germany shall apply between the parties. The provisions of the Hague Conventions Relating to a Uniform Law on the International Sale of Goods are excluded. Amendments and supplements to this contract must be made in writing. Oral collateral agreements shall be of no effect. No party can invoke a procedure diverging from the text of the contract as long as this divergence is not fixed in writing. If a provision of this contract is or becomes ineffective, the remainder of the contract shall remain in force. The parties shall undertake to replace the ineffective provision by an equivalent supplement to the contract coming closest to the ideas of the contracting parties upon conclusion of the ineffective provision. PVT is entitled to save and process the data of the contracting party according to the provisions of the Federal Data Protection Act.