1. Scope of validity
1.1 The following DATA MODUL general terms and conditions of business shall have exclusive validity. They shall apply for all future business relations with the customer. Terms and conditions set by the customer contradicting or deviating from DATA MODUL's general terms and conditions of business will not be recognised unless DATA MODUL has provided explicitly written approval of their validity. DATA MODUL's general terms and conditions of business shall remain applicable, even if DATA MODUL, without reservation, provides the customer with a delivery or service, in the awareness of terms and conditions set by the customer contradicting or deviating from these general terms and conditions of business.
1.2 All agreements concluded between DATA MODUL and the customer concerning deliveries and services are to be set down in writing in the relevant agreement and in any additional agreements.
1.3 These general terms and conditions of business shall only apply relating to companies and legal persons under public law (juristische Person des öffentlichen Rechts) and special funds under public law (öffentlich-rechtliches Sondervermögen) in the sense of § 310 para. 1 German Civil Code.
2. Conclusion of an agreement
2.1 If a customer order is an offer as per § 145 German Civil Code, DATA MODUL may accept this offer within four weeks after receipt.
2.2 Offers made by DATA MODUL are non-binding. An agreement concluded between DATA MODUL and the customer shall not become valid until DATA MODUL has provided written confirmation of the order. The dispatch of an invoice shall be equivalent to the confirmation of an order.
2.3 DATA MODUL retains ownership rights and copyrights to illustrations, drawings, calculations, films, models, slides, repros, Photostats and other documents; these may not be made accessible to third parties or used by the customer for the benefit of himself or third parties without DATA MODUL's written consent. DATA MODUL shall otherwise be entitled to demand compensation, notwithstanding further rights or actions.
3. Remuneration, time of payment, default in payment, set-off, right of retention
3.1 DATA MODUL prices are ex works. Packaging costs and the costs of taking back packaging shall be invoiced separately, as per the relevant agreement. The same shall apply for shipping costs if the customer requests shipping. Unless agreed otherwise, the mode and route of shipping shall be at the discretion of DATA MODUL.
3.2 If the object of the agreement is an imported merchandise, the ?price stated in the order confirmation is based on the foreign currency exchange rate applicable on the date of the order confirmation.
3.3 DATA MODUL reserves the right to amend its prices if cost increases occur following the conclusion of an agreement and prior to delivery of the merchandise or performance of the service, particularly wage and salary increases, increases in freight charges including customs duties, increases in import and export charges, increases in DATA MODUL's upstream supplier's prices and cost increases due to exchange rate fluctuations.
3.4 The legally applicable rate of value-added tax is not included in DATA MODUL's prices. It will be shown separately in invoices at the applicable rate.
3.5 The relevant remuneration shall become due for payment immediately upon receipt by the customer of the delivery or service.
3.6 If the customer does not pay the agreed remuneration, he shall automatically be in default two weeks after the time of payment and receipt of the invoice, without the need for a reminder.
3.7 In the event of a customer defaulting on his pay-ment obligation, DATA MODUL shall be entitled to demand interest on arrears at a rate of 12% p.a. in relation to remuneration claims. If, in an individual case, DATA MODUL is able to prove a greater level of damage caused by delayed performance, it shall also be entitled to claim for this. The customer, on the other hand, shall have the right to prove to DATA MODUL that it suffered a lesser level of damage as a result of the default on payment. In all cases, however, DATA MODUL shall be entitled to demand legally applicable interest on arrears at a rate of 8 % p.a. above the valid basic interest rate of the European Central Bank (Basiszinssatz).
3.8 In cases not relating to remuneration claims, DATA MODUL shall be entitled to demand interest on arrears at a rate of 9% p.a. If, in an individual case, DATA MODUL is able to prove a greater level of damage caused by delayed performance, it shall be entitled to claim for this. The customer, on the other hand, shall have the right to prove to DATA MODUL that it suffered a lesser level of damage as a result of the default on payment. In all cases, however, DATA MODUL shall be entitled to demand legally applicable interest on arrears at a rate of 5 % p.a. above the valid basic interest rate of the European Central Bank (Basiszinssatz).
3.9 DATA MODUL will only accept cheques and bills of exchange on account of performance. Taxes on drafts and bills of exchange are to be borne by the customer.
3.10 The customer shall only have a right of set-off or retention if his counterclaim is res judicata, uncontested, or acknowledged by DATA MODUL.
4. Period of delivery and performance, default
4.1 DATA MODUL shall be entitled to provide part ialdeliveries and services if these are not unreasonable for the customer.
4.2 Delivery periods shall be deemed to have been complied with, if the object of the agreement has left the works prior to their expiry, or if notice has been provided of readiness for shipping.
4.3 If shipping is delayed at the customer's request, the merchandise shall be stored at DATA MODUL at the customer's expense and risk.
4.4 Force majeure events shall entitle DATA MODUL - even during a default period - to postpone the delivery or service for the duration of the impediment. All circumstances for which DATA MODUL is not responsible and which make it impossible or unreasonably difficult for DATA MODUL to provide the delivery or service shall be equivalent to force majeure; these include, for example, a lawful strike or lockout, war, import and export bans, energy and raw material shortages, official measures, unpunctual self-supplying for which DATA MODUL is not responsible. If the duration of the impediment exceeds two months, the customer shall be entitled, after setting an appropriate grace period, to rescind the agreement if he proves that the wholly or partially outstanding fulfilment of the agreement is no longer of interest for him due to the default.
4.5 If, in the event of DATA MODUL already having defaulted, the customer sets in writing an appropriate period for performance and simultaneously declares that he will reject the service on expiry of this period, upon the expiry without results of this grace period he shall be entitled to rescind the agreement. This period must be at least four weeks.
4.6 Default-based compensation claims against DATA MODUL shall be in accordance with item 8.
4.7 DATA MODUL's compliance with its delivery and service obligation assumes the customer's punctual and proper fulfilment of all his contractual obligations.
4.8 If the customer defaults in accepting delivery of the merchandise or violates other obligations to cooperate, DATA MODUL shall be entitled to act in accordance with §§ 280 ff. German Civil Code. In this event, the risk of accidental loss or accidental deterioration of the object of the agreement shall pass to the customer at the moment in time at which the customer defaults on acceptance of delivery.
5. Passage of risk, transportation insurance
5.1 Unless stated otherwise in the order confirmation, ex works delivery is agreed. The risk passes to the customer when the object of the agreement is handed over to the person carrying out the transportation. This shall also apply for a transportation carried out by DATA MODUL.
5.2 Where merchandise is shipped, DATA MODUL will, at the customer's request and expense, conclude transportation insurance. Notice of damage in transit is to be provided in writing both to DATA MODUL and the carrier making delivery immediately, however, within 5 days at the latest.
6. Third party protected privileges
6.1 The customer will notify DATA MODUL immediately if third parties claim infringement of patents or other protected trade marks.
6.2 If and insofar as a contractual obligation exists in this respect, DATA MODUL shall release the customer from third party claims, subject to the provision that the customer fully concedes to DATA MODUL the prosecution of the legal defence.
7. Warranty for defects
7.1 The following warranty rights of the customer as-sume that he has properly met his requirements to examine the merchandise and make a complaint in respect of a defect immediately upon receipt thereof, as per § 377 German Commercial Code. During the examination the merchandise is to be checked for compliance with the specification agreed with DATA MODUL in writing. If such a specification has not been provided, the specification produced by the manufacturer in respect of the supplied merchandise shall act as standard. Complaints concerning obvious defects have to besubmitted in writing to DATA MODUL immediately, but no later than eight days after receipt of the merchandise.
7.2 Advertising statements or other public expressions and declarations by third parties shall not establish any quality fault. DATA MODUL's warranty is excluded in this respect.
7.3 Merchandise proving to be defective at the moment of the passage of risk will be subsequently redelivered or repaired by DATA MODUL at the customer's discretion (subsequent performance - Nacherfüllung).
DATA MODUL may refuse the chosen form of subse-quent performance, or the subsequent performance overall, if this is only possible with disproportionate costs.
7.4 Defective merchandise may only be returned to DATA MODUL for the purpose of subsequent performance with DATA MODUL's written consent. Transport costs incurred to this end shall be borne by the customer. The risk of accidental loss or accidental deterioration of the returned merchandise shall not pass to DATA MODUL until this is handed over to DATA MODUL at its place of business. If DATA MODUL delivers a defect-free object for the purpose of subsequent performance, the customer must return the supplied object.
7.5 If DATA MODUL is not prepared or able to remedy defects or make a replacement delivery, in particular if this is delayed in excess of reasonable time on grounds for which DATA MODUL is responsible, or if the remedy of defects or the replacement delivery otherwise is not possible, the customer shall, at his discretion, and as permitted by law, be entitled to demand the cancellation of the agreement or a price reduction and compensation. The remedy of defects/replacement delivery shall not be considered impossible until three unsuccessful attempts have been made.
7.6 The period of limitation for claims based on defects, including compensation claims, shall begin 1year after the beginning of the legally applicable statute of limitations. This shall not apply for deliberate and gross negligence. Items 8.1 to 8.4. shall also apply in respect to a compensation claim.
7.7 In the event of customer modifications to the object of the agreement taken by himself or undertaken by third parties without DATA MODUL's written consent, the warranty shall cease unless the customer proves that there is no causal link between the modification and the defect which has occurred.
8. Joint and several liability
8.1 DATA MODUL shall be fully liable for deliberate and gross negligence. For simple negligence DATA MODUL shall only be liable in the event of the violation of an obligation whose fulfilment is of special significance for the attainment of the purpose of the agreement (cardinal duty), this liability being limited to the level of damage foreseeable for this type of agreement.
8.2 In a case of simple negligence, DATA MODUL's liability is limited to a maximum rate of 5% of the value of the order.
8.3 In cases of original impossibility, DATA MODUL shall only be liable if it was aware of the impediment to performance or if its ignorance of this was based on gross negligence.
8.4 The above-mentioned limitations and exclusions of liability shall not apply in respect of claims in accordance with the German Product Liability Act (Produkthaftungsgesetz) and in cases of damages resulting from the injury to life, injury to health or bodily harm.
8.5 Insofar as DATA MODUL's liability is excluded or limited, this shall also apply to the personal liability of its employees, workers, staff members, representatives and vicarious agents.
8.6 With the exception of claims due to tortious acts, compensation claims held by the customer, the liability for which is limited in accordance with this item, shall become limited to one year after the beginning of the legally applicable limitation period.
9. Retention of title
9.1 DATA MODUL shall retain ownership of the supplied merchandise (Eigentumsvorbehalt) until all such claims have been met as are applicable against the customer at the moment of the agreement's conclusion on account of business relations. This shall also apply for future claims acquired by DATA MODUL as a result of its ongoing business relationship with the customer.
9.2 In the event of customer behaviour which is culpably in violation of the agreement, particularly default on payment, DATA MODUL shall be entitled to repossess the object of the agreement. Repossession of the object of the agreement is not a cancellation of the agreement unless DATA MODUL expressly declares this in writing.
9.3 The customer shall be entitled to resell the object of the agreement during his ordinary course of business provided he is not in default on payment. He transfers to DATA MODUL all such receivables equalling the amount of the final invoice for DATA MODUL's claim (including valueadded tax) as accrue to him against his customers or third parties as a result of the resale, regardless of whether the object of the agreement is resold with or without modification. DATA MODUL accepts this transfer. The customer remains authorised to call in this receivable even after the transfer. DATA MODUL's authority to call in this receivable itself shall remain unaffected. DATA MODUL undertakes not to call in the amount owed if the customer meets his payment obligations arising from the relevant contractual relationship, does not default on payments, and in particular, if no application for insolvency proceedings has been filed or payments have not been suspended. If this does occur, however, DATA MODUL may demand that the customer provides notice
of the transferred claims and his creditors, provides all information necessary to call in the claims, hands over related documents and informs the debtors (third parties) of the transfer.
9.4 Processing or amelioration of the merchandise by the customer will always be undertaken for DATA MODUL. If the merchandise is processed using other objects which do not belong to DATA MODUL, DATA MODUL shall obtain co-ownership of the new objects in the ratio of the value of the merchandise relative to the other processed objects at the time of the processing. Moreover, the same shall apply for the object resulting from the processing as for the merchandise provided subject to a reservation.
If the merchandise is inseparably combined with other objects which do not belong to DATA
MODUL, DATA MODUL shall obtain co-ownership of the new object in the ratio of the value of the merchandise relative to the other combined objects at the time of the combination. If the combining occurs in such a way that the customer's object is to be regarded as the main object, it is agreed that the customer shall confer co-ownership on DATA MODUL on a pro rata basis. The customer shall reserve the sole ownership or co-ownership thus achieved for DATA MODUL.
9.5 In cases of seizures or other third party access to the sold merchandise, the customer will specify DATA MODUL's property and inform it immediately in order to provide DATA MODUL with the opportunity to bring action against the third party as per § 771 German Code of Civil Procedure (ZPO). If the third party is not able to reimburse DATA MODUL for the court and out-of-court costs incurred through the assertion of its ownership rights, the customer shall be liable in this respect.
9.6 DATA MODUL undertakes, at the customer's request, to provide necessary collateral if the realisable value of the collateral exceeds the receivable for which security is to be provided by more than 25%. DATA MODUL may choose the type of collateral to provide.
10. Export
The customer may only export merchandise and technical information supplied by DATA MODUL in compliance with applicable export regulations and must impose the same obligation on his customers.
11. Labelling of origin
Any change to the performance or service provided by DATA MODUL, particularly its identification which contains a customer or third party origin, or creating the impression of a customer or third party produced product is not permissible unless DATA MODUL has provided its prior written permission in this respect.
12. Sale on approval
12.1 Where the supply of a sample or test equipment is agreed, the customer may rescind the agreement within the agreed period by making a declaration of unacceptibility.
12.2 The above-stated general terms and conditions of business apply in respect of a sale on trial; in particular, that the risk passes to the customer as per item 5.1.
12.3 If notice of unacceptibility is provided within the agreed period, §§ 346 ff. German Civil Code shall be applicable.
12.4 The customer shall bear the costs of the return shipment of the object of the agreement. DATA MODUL is to be informed in advance in writing of any return shipments. The risk of accidental loss or accidental deterioration of the returned merchandise shall not pass to DATA MODUL until this is received by DATA MODUL at its place of business.
13. Place of performance, place of jurisdiction, ap-plicable law
13.1 The place of performance is DATA MODUL's place of business in Munich.
13.2 Munich is agreed upon as theplace of jurisdiction for all disputes arising in connection with the business relationship.
13.3 The law of the Federal Republic of Germany shall be applicable. The provisions of the UN Sales Convention are excluded.
13.4 The original of this document is in the German language. All disputes involving wording or context will be decided according to the German version.

As of Mai 2002