| § 1 |
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 Party to the contract |
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The party to the contract shall be Tripus systems GmbH, Am Hohen Rain 2, 89347 Bubesheim, (hereinafter known as: Tripus), represented by its Managing Directors José Gómez and Uwe Albers.
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Tel.: (08221) 9016-0
Fax: (08221) 32073
E-Mail: mailto:sales@tripus.de
Memmingen Commercial Register: HRB 12249
VAT Reg. No. DE814159590
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| § 2 |
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General |
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These provisions shall only apply to companies (§ 14 of the German Civil Code), legal entities under public law or special public law assets in the sense of § 310 of the German Civil Code, but not to consumers (§ 13 of the German Civil Code).
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All quotations, order confirmations, and services provided by Tripus systems GmbH shall be provided exclusively on the basis of the following terms of business.
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The latest version of these general terms of business shall also apply to future contracts for the sale and/or delivery to the same purchaser without express reference having to be made to them in each individual case. In the event of amendments to the general terms of business, the purchaser shall be notified without delay.
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| (4) |
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The following general terms of business shall be exclusively applicable. Different, contradictory or supplementary general terms of business issued by the purchaser shall only become an integral part of the contract if and in as far as Tripus GmbH has expressly consented to them. This consent requirement shall apply in any event, for example even if Tripus delivers goods to the customer without reservation whilst also being aware of the customer's general terms of business.
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| (5) |
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Counter confirmations by the purchaser, referencing its terms of business and purchasing, are hereby expressly refused.
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| (6) |
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By placing the order and accepting the goods supplied by us, the customer confirms its agreement to our terms.
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| § 3 |
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Quotation and contract conclusion |
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Our quotations shall be non-binding unless they are valid for a limited period. Order or part numbers shall refer to the latest edition of the documentation issued by Tripus systems GmbH as well as catalogues or brochures which contain additional technical information. These documents shall only be approximate unless they are expressly described as binding.
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| (2) |
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Acceptance declarations and all purchase orders shall require written confirmation by Tripus (including EDI, data transmission and machine-legible data media. This shall also apply as and where applicable to supplements, and amendments or side-agreements. The issue of an invoice shall be regarded as an order confirmation.
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| (3) |
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Our written order confirmations shall provide the basis for the contract and shall be binding for the scope of the delivery. This shall apply even if the customer has requested that a concrete quotation be issued. Purchase orders placed by the customer shall be binding for the customer and shall be deemed to have been accepted with the presentation of the order confirmation from Tripus.
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| (4) |
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Drawings, illustrations, dimensions, weights or other performance data shall only be binding if this has been expressly agreed in writing. All drawings, specifications, samples and the like which Tripus attaches to its quotations shall be and remain the property of Tripus. The customer undertakes not to use these documents for purposes other than the contract and also not to copy them or make them accessible to third parties. They are to be returned at the request of Tripus or if no order is placed without having to be requested.
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| (5) |
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If it becomes apparent after the contract has been concluded that the claim on the part of the vendor to payment is jeopardised due to the poor solvency of the purchaser, in particular as a result of the customer exceeding its credit limit or due to outstanding, overdue invoices, Tripus GmbH shall be entitled to refuse to fulfil the contract until the customer has made the payment or has provided security for it. The vendor shall be entitled to cancel the contract if it has set the purchaser a reasonable deadline to make the payment or provide security and this deadline has passed fruitlessly.
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| § 4 |
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Prices and terms of payment |
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The prices specified by the vendor in its quotations shall be non-binding. Unless specified to the contrary in the order confirmation, the prices shall be ex-works/warehouse of the vendor, excluding packaging, postage, freight, other shipment expenses, insurance and duties; these shall be invoiced separately.
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| (2) |
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The customer shall pay the costs of shipment and packaging. If the customer receives packaging from Tripus, the customer confirms by accepting the goods that it is capable of recycling the packaging in compliance with the Packaging Regulation and undertakes to dispose of the packaging in compliance with the provisions of the Packaging Regulation.
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| (3) |
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The prices are to be understood exclusive of taxes (in particular value-added tax) regardless of whether said taxes are charged in Germany or in the country to which the products are shipped. Statutory value-added tax shall be invoiced separately at the statutory rate in force when the contract is concluded.
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| (4) |
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Invoices shall be due on the date on which they are issued. Payment must be made within 30 days from the date of the invoice on a strictly net basis. If this payment deadline is not met, we reserve the right to claim default damages on the basis of any bank loan we have to use. Tripus shall be entitled to make the delivery of the goods dependent on payment on a matching basis (for example by means of a direct debit) or payment in advance.
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| (5) |
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The vendor shall be entitled to use the payments initially against its older debts despite any provisions of the customer to the contrary. If costs and interest have already been incurred, the vendor shall be entitled to use the payment initially against the costs and then against the interest and finally against the main debt.
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Payment shall not be deemed to have been made until the vendor can freely access the monies.
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If the purchaser is in default with its payment obligations or if the vendor is made aware of other circumstances which jeopardise the purchaser's credit worthiness, the vendor shall be entitled to demand the immediate payment of all outstanding debts or other security.
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| § 5 |
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Setting off, right of retention, assignment ban |
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The purchaser shall only be entitled to set off and exercise retention rights against accounts receivable which are undisputed or have been established in a court of law. Price reductions on the basis of complaints shall be subject to the same restrictions.
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The purchaser hereby agrees to the setting off or its accounts receivable and accounts payable with the vendor.
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| (3) |
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The rights of the customer from this contract shall be non-transferable.
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| § 6 |
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Lead time for goods and services |
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The deadlines and periods specified by the vendor shall be non-binding unless expressly agreed otherwise in writing. Call and blanket orders shall require an individual delivery deadline agreement.
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Lead times shall commence on the date of the order confirmation. Fulfilment of the delivery duty on the part of the vendor shall assume the legal and correct fulfilment of the customer's obligations; in particular the vendor must have received all the documents, parts, details and approvals to be provided by the customer as well as any agreed deposit payments.
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The date of delivery shall be the date on which the purchaser is notified that the goods are ready for collection. If delivery is included, the date of delivery shall be the date on which the goods are handed over to the forwarder.
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Reasonable part shipments and part services shall be permitted within reason. Furthermore unavoidable quantity discrepancies of up to +/- 5 % shall not be regarded as short quantities.
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Delays in delivery and service provision caused by forces majeures shall not be the responsibility of the vendor. Forces majeures and labour disputes shall exempt the parties to the contract from the duties for the duration of the problem and the extent. The parties to the contract undertake within reason to provide each other with the required information without delay and to adjust the duties to the changed circumstances in good faith. The lead time must be reasonably extended.
The customer shall only be entitled to cancel the contract if the agreed lead time has already been exceeded by more than ten weeks. Prior to this, the customer shall only be entitled to cancel the contract if the vendor has notified the customer in writing that it is unable to supply the goods. The above restriction shall not apply to fixed transactions. If the manufacture of the goods is unreasonable due to forces majeures or a labour dispute, the vendor shall be exempted from its duty of supply and shall be entitled to cancel the contract.
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| (6) |
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The failure to meet a delivery deadline shall not automatically places in default and shall not entitle the customer to make a complaint or to compensation for damages of any kind. If Tripus is in default with the delivery of goods on the basis of a delivery date agreed in writing, the purchaser may cancel the contract if it has set the vendor a reasonable extended deadline of at least 14 days unless no deadline has to be set in an exceptional case. If, when setting this extended deadline, the purchaser does not state that it still insists on fulfilment or that it would like to exercise its right to cancel and if such a statement is not received by the vendor within a further period of seven days, the vendor, in turn, shall be entitled to cancel the contract. The right of the purchaser to demand compensation shall depend on the requirements set out in § 9.
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| § 7 |
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Transfer of risk |
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The risk shall be transferred to the purchaser as soon as the goods have left the vendor's plant, an external warehouse or the warehouse of a subcontractor in the event of goods manufactured elsewhere and delivered direct. The risk shall also be transferred to the customer for part consignments and early deliveries when the goods are dispatched. If the shipment is delayed by circumstances which are the customer's responsibility, the risk shall be transferred to the customer on the date on which the goods are ready for shipment.
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The purchaser must take delivery of supplied goods even if they are suffering from minor defects, notwithstanding the rights set out in § 8.
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| § 8 |
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Reservation of title |
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The delivered goods shall remain our property until payment of all current and future accounts receivable resulting from the business relationship with the customer, regardless of their legal basis, have been paid in full.
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The purchaser is authorised to resell and/or process the products subject to this reservation of title as part of its normal business procedures. In this case, the following provisions shall also apply.
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The reservation of title shall also apply to the full value of the products resulting from processing, blending or connecting the goods owned by the vendor, for which purpose the vendor shall be regarded as the manufacturer. If the processing, blending or connecting takes place with goods owned by third parties who have reserved title, the vendor shall acquire co-title proportionately to the invoice total of the processed, blended or connected goods. Otherwise the same shall apply to the resulting product as to goods supplied with reserved title.
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| (b) |
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The accounts receivable from third parties due to the resale of the products are hereby assigned to the vendor by the purchase for security in full or to the value of the co-title owned by the vendor as described in the paragraph above. The vendor hereby accepts this assignment.
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The purchaser shall be authorised to collect the accounts receivable in addition to the vendor. The vendor undertakes not to collect the accounts receivable as long as the purchaser meets its payment obligations to the vendor, does not fall into default, does not submit an application to open insolvency proceedings and does not suffer any other adverse effect to its solvency. If this is the case, the vendor may demand that the purchaser notifies it of the assigned accounts receivable and the debtors, provides all the information required to collect these accounts, issues the relevant documents and notifies the debtors (third parties) of the assignment.
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If the purchaser connects the reservation of title goods to property or movable items, it shall also assign its accounts receivable due to it as payment for the connection together with all secondary rights for security as a proportion of the value of the connected reservation of title goods to the other connected goods at the time of the connection to the vendor without this requiring any separate declarations.
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The purchaser shall not be entitled to pledge leased items subject to the reservation of title, to transfer title to them by way of security or to agree other dispositions which jeopardise the vendor's title. The purchaser must notify the vendor without delay of seizures, confiscations or other action or intervention by third parties. To register a justified interest, the purchaser must provide the vendor with the information required to claim its rights against the customer and issue the documents required for this purpose.
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If the purchaser breaches the contract, in particular if it fails to pay the purchase price, the vendor shall be entitled under the statutory regulations to cancel the contract and/or to demand the return of the products on the basis of its reservation of title. The demand for the return of the products shall not also include a cancellation declaration; instead the vendor shall be entitled simply to demand the return of the products and reserve the right to cancel the contract. If the purchaser does not pay the due purchase price, the vendor may only exercise these rights if the vendor has previously set the purchaser a reasonable deadline for payment and this has passed fruitlessly unless setting such a deadline is not required under the statutory regulations.
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The purchaser shall keep the property or joint property of the vendor safe free of charge. The purchaser undertakes to keep the property or joint property of the vendor with the care of a conscientious businessman and protect it from decay, reduction in value or loss, including against its own purchasers.
In the event of action by third parties against the reservation of title goods, the purchaser shall notify the third parties that the goods are owned by the vendor and shall notify the vendor without delay. The purchaser shall be responsible for all costs and damages.
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The vendor undertakes to release the securities supplied to it at the request of the purchaser if the realisable value of its securities exceeds the accounts receivable they secure by more than 20 %. It shall decide which securities it shall release.
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| § 9 |
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Warranty |
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The exclusion of standard industry discrepancies shall require an express written agreement. The same shall apply to guarantees. The information provided by the vendor about the goods and services in its catalogues, brochures and price lists shall only be regarded as descriptions, designations or guide values unless stated to the contrary in the order confirmation. Minor, insignificant discrepancies compared to the catalogues or goods supplied earlier shall not be regarded as defects.
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The purchaser must check for itself whether the goods ordered from the vendor are suitable for the purpose for which it intends to use them. Unsuitable goods shall only be regarded as a defect if the vendor has confirmed their suitability in writing to the purchaser.
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In the event of defects, all the parts which proved to be defective as a result of a circumstance which took place before the transfer of risk, shall be refinished or replaced with perfect goods at the choice of Tripus. Wearing parts are not included in this.
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The identification of obvious defects must be reported to us in writing without delay, but at the latest eight days after the receipt of the goods. Concealed defects are to be reported to Tripus without delay as soon as they are identified or, if they are not identified through gross negligence, at the latest eight days afterwards in writing. If the complaint is justified, we shall pay the direct costs (as long as the complaint proves to be justified), the costs of the spare part, shipment and reasonable costs for removal and installation if this does not result in disproportionately high costs to Tripus. The customer must provide us with the time and opportunity required to refinish or supply replacements, otherwise Tripus shall be exempted from its liability for the resulting consequences. Only in urgent cases of risk to operational safety and for the prevention of major damage shall the customer be entitled, with the prior consent of Tripus, to rectify the defect it self or have it rectified by third parties and to demand compensation from us of the costs required for this. This shall also apply in the event that we become in default with the rectification of the defect. If the customer or a third party rectifies the defect incorrectly, Tripus shall not accept any liability for the resulting consequences.
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If the assembly, installation, sales or maintenance instructions issued by the vendor are not followed, modifications are made to the products, parts are replaced or consumables are used which do not meet the original specifications, claims for defects shall only be accepted if the purchaser can provide evidence that the defect was not caused by this but in fact already existed at the time of the transfer of risk.
The vendor shall accept liability for its products being free of manufacturing and material floors and also that they have the properties agreed in the order confirmation.
Claims by the purchaser resulting from defects shall assume that the purchaser has completed its inspection and reporting duties set out in § 377 of the German Commercial Code.
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If replacement goods or refinishing fail to rectify the situation, the purchaser may only demand a reduction in the payment or cancel the contract as it chooses. The right to cancel and a claim for compensation rather than delivery shall only exist if the defect is not insignificant. The right of the purchaser to demand compensation shall depend on the requirements set out in § 9.
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If the goods have already been supplied to end users, the purchaser shall only be entitled to lodge claims for defects with the vendor if its customers have lodged claims with it. This shall not apply if the goods have been taken back as a result of goodwill gestures not agreed with the vendor. Furthermore, the purchaser shall not be entitled to cancel the contract with the vendor if it has had to take back the goods because it has failed to meet its duty to refinish the goods correctly, in particular because it failed to meet a re-fulfilment deadline set for it and was culpable for this failure.
The vendor shall only be obliged to compensate the costs set out in § 439 Para. 2 of the German Civil Code if the purchaser has previously notified it without delay and in writing of the re-fulfilment demand by its customer, It has notified it of the intended method of re-fulfilment and the approximate costs involved and the vendor has not disputed this without delay. The purchaser undertakes to follow any suggestions made by the vendor relating to a lower cost version of re-fulfilment.
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If the vendor breaches non-service-related duties as described in § 241 Para. 2 of the German Civil Code, the customer shall be entitled to cancel the contract and claim compensation rather than accepting the goods or services beyond the statutory regulations only if it has previously warned the vendor in writing and the breach of duty has nevertheless continued.
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In the event that the defect is rectified, the vendor undertakes to pay all the costs required for such rectification, in particular transport, travelling, labour and material costs if and in as far as they have not been incurred by moving the purchased goods to a place other than the place of fulfilment.
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Claims for defects shall become statute-barred within 12 months of the delivery of the goods to the customer. This shall not apply if the breach of duty was caused maliciously or through negligence. §§ 444 and 479 of the German Civil Code shall not be affected.
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| § 10 |
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Compensation, limitation of liability |
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Unless specified to the contrary in these general terms of business including other special provisions, the vendor shall bear liability on the basis of current statutory regulations in the event of a breach of contract and out of contract duties.
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The vendor shall only be liable to pay compensation, regardless of the legal basis, in the event of malice and gross negligence. The vendor shall only be liable for simple negligence in the following cases:
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For death, physical injury or health impairment,
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| (b) |
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For the breach of a cardinal contract duty (duty whose fulfilment makes the execution of the contract possible in the first place and on whose fulfilment the other party to the contract normally relies and may rely); In this case the vendor's liability shall be limited to compensation for the foreseeable, typical damage.
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The limitations of liability set out above (2) shall not apply if the vendor deliberately fails to mention a defect or has accepted a guarantee for the properties of the goods. The same shall apply to claims by the purchaser on the basis of the Product Liability Law.
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The purchaser may only cancel or terminate the contract on the basis of a breach of duty which does not comprise a defect if the vendor is responsible for said breach of duty. The purchaser shall not have a free termination right (in particular under §§ 651, 649 of the German Civil Code). Otherwise the statutory requirements and legal consequences shall apply.
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The exclusion or limitation of liability on the part of the vendor shall also apply to the vendor's legal representatives and agents.
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No liability shall be accepted for the consequential damages of a defect and in particular the vendor shall not be liable for loss of profit or other financial damages suffered by the purchaser.
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| § 11 |
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Utility and exploitation rights, intellectual property rights |
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If the vendor manufactures goods on the basis of a purchase order placed by the purchaser to its instructions and specifications and supplies these goods to the purchaser, the purchaser shall be liable to the vendor for ensuring that the goods and services ordered are not subject to intellectual property rights owned by third parties. It shall indemnify the vendor from all resultant claims and must compensate it for any damages incurred.
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If the vendor supplies the purchaser with tools, designs, installation suggestions or other drawings and documents together with the goods, it shall retain title and all intellectual property and utility rights to them. The purchase contract shall only entitle the user to use the goods; in particular it shall not be entitled to copy these items or to make them available to third parties.
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| § 12 |
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Confidentiality |
| The customer undertakes to treat all information, expertise and other business secrets relating to the completion of the order as strictly confidential and not to make available any information, documents, documentation, drawings, sketches or other documents to third parties or disclose them in any other way without the express consent of Tripus. Tripus shall also treat the customer's documents as confidential. |
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| § 13 |
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Data protection |
| The vendor shall be entitled to save and process all the data provided for the contract completion relating to the purchaser in compliance with the provisions of the German Data Protection Law and EU Regulation 2016/679 (General Data Protection Regulation) for its own purposes. |
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| § 14 |
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Severability |
| If a provision in these terms of business or a provision in other agreements should be or become invalid, the validity of all the other provisions or agreements shall not be affected. The invalid provision shall be replaced by a legal provision which comes as close as possible to the aim of the invalid provision. This shall also apply in the event of an undesired loophole. |
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| § 15 |
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Place of jurisdiction, place of fulfilment |
| The place of jurisdiction shall be Günzburg. However, the vendor shall also be entitled to sue the purchaser at the court with jurisdiction at its registered office. |
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| § 16 |
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Applicable law |
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The law of the Federal Republic of Germany shall apply to these terms of business and the entire legal relations between the purchaser and the vendor with the exclusion of all bi and/or multilateral treaties relating to the purchase of movable items, in particular with the exclusion of the UN Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG). |
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