Terms and conditions

1 Scope

1.1 These general conditions of supply and sale shall apply to all relationships subject to the law of obligations prior to the signing of the contract, and to all contracts and business relationships between esaqa GmbH (hereinafter referred to as "esaqa") and its customers, in as much as the latter are entrepreneurs, legal entities under public law or separate bodies of public law (hereinafter referred to as "customers"), the two sides together also being known as "contractual partners".

1.2 In the absence of any other agreement, these general conditions of supply and sale shall also apply to future contracts between the partners, without its being necessary to draw attention to them anew. This shall also apply if, at the time of the first transaction, these conditions do not come to the knowledge of the customer until after the conclusion of the contract.

1.3 These general conditions of supply and sale shall apply exclusively. No conditions of the customers which contradict or deviate from these conditions shall apply unless esaqa has agreed expressly to their applicability. Neither shall esaqa accept any conditions other than its own if it sells goods unconditionally to the customer while aware of contradictory or deviating conditions. It shall not be necessary for esaqa to object specifically to any other business and supply conditions.

2 Content liability

2.1 Quotations issued by esaqa shall be non-binding and thus freely revocable until receipt of a declaration of acceptance from the customer. As regards the scope and terms of deliveries, it is the written confirmation of the order by esaqa which shall be binding, unless the customer objects within two weeks of receiving it. If the contract is concluded by acceptance of the order, the declaration of acceptance by esaqa shall require to be made in writing.

2.2 All product information (e.g. technical data, capacity, description of product characteristics, etc.) issued by esaqa, as for example in catalogs, advertisements, illustrations and suchlike, shall be approximate and only binding on esaqa if this is expressly agreed in the written contract between the partners.

2.3 esaqa reserves all ownership rights and intellectual property rights to illustrations, drawings, calculations, and other records. This shall also apply to such written records as are designated as "confidential". Before passing on any such records to third parties, the customer shall require the express written approval of esaqa.

2.4 Any legally relevant declarations shall require to be made in writing if they are to have any validity. Written form shall also be deemed to have been observed if such declarations are sent by fax or e-mail.

3 Prices and payments

3.1 In the absence of any other agreement, prices shall be "EXW (Incoterms 2010) 91247 Vorra, Tiergartenstr. 13" exclusive of packaging. Statutory value-added tax shall not be included therein, but shown separately in the invoice at the statutory rate applicable on the date of invoice.

3.2 Unless the parties make any other provision in their written agreement, the purchase price shall fall due for payment in full within 14 days of the invoice date. The statutory consequences shall apply in cases of default in payment.

3.3 The customer shall only have the right to offset if his counter-claims have been established as legally binding, are undisputed, or have been recognized by esaqa. The customer shall only be empowered to exercise a right of retention if his counter-claim has its origin in the same contractual relationship.

4 Liability

4.1 esaqa shall be unrestrictedly liable for intent and gross negligence and for cases of culpable injury to life, limb or health. If there is any culpable breach of material contractual obligations, the liability of esaqa shall be restricted to contractually typical foreseeable loss or damage. A material contractual obligation is an obligation without the performance of which the contract cannot properly be fulfilled, and in compliance with which the contractual partner may routinely trust.

4.2 The provisions of the German Product Liability Act (ProdHaftG) and §§ 444 and 639 of the German Civil Code (BGB) shall remain unaffected by the above provisions.

4.3 Unless Section VIII 1 or 2 of these general conditions of supply and sale is relevant, there shall be no liability of the kind which makes a distinction as to actual culpability for any cause in law (in particular no liability for ordinarily negligent breaches of non-material contractual obligations or breaches of obligation which occurred prior to the conclusion of the contract).

4.4 If the liability of esaqa is excluded, this shall also apply to the liability of its corporate agents, managerial staff and employees.

4.5 esaqa’s contractual partner shall indemnify esaqa against third-party claims provided that esaqa is not liable to say partner on account of the above mentioned exclusion of liability.

5 Notice of termination

5.1 esaqa shall have the right to rescind the contract or, if there is an ongoing purchase agreement, to give summary notice of termination if

5.1.1 the contractual partner fails to fulfill his financial obligations within the fixed period in spite of having been set a reasonable extension period, or

5.1.2 judicial insolvency or composition proceedings are instituted regarding the assets of the contractual partner, or

5.1.3 products which have been delivered to the customer but are still the property of esaqa are seized or claimed by a third party or parties.

5.2 If a purchase agreement has been concluded between the parties for an indefinite period of time, each of them shall have the right to give ordinary notice of termination of said agreement observing a period of three months to the end of a calendar month.

6 Confidentiality

6.1 The parties hereby undertake to maintain secrecy in respect of third parties on all records – this term shall also cover samples, models and data – and knowledge, reports, and correspondence in the context of the contract as a whole which they gain, receive or obtain in the context of the business relationship, only to use them for the jointly pursued aims and to treat them with the same degree of diligence as corresponding records and knowledge of their own, if the other party designates them as confidential or has an obvious interest in their being treated confidentially. Furthermore, the customer shall be under an obligation not to make use of or exploit business and trade secrets disclosed by esaqa, in particular expertise imparted for the purpose of fulfilling the orders, in the context of any work of its own or to bring them to the knowledge of third parties in any way. If the appropriate steps in terms of industrial relations law have not already been taken, the parties shall place under written obligation those of their employees who make a working contribution to this business relationship to maintain secrecy in accordance with this provision and shall draw their attention to the fact that said obligation will also continue to apply after the termination of their employment relationship. The customer shall moreover also ensure that the customers to whom he delivers (customer’s customers) are also placed under an obligation to maintain secrecy within the meaning of this provision.

6.2 The above obligation shall not apply to records or knowledge such as are generally known or such as were already known to the receiving party at the time of receipt through said the party was not under obligation to maintain secrecy on them at the time, or which were passed on after that by a third party which had the right to pass them on, or which were developed by the receiving party without recourse to confidential documents, records or knowledge belonging to the other party.

6.3 The obligations to maintain secrecy in accordance with this provision shall not be affected by the termination of the contract concerned but shall, on the contrary, remain in force.

6.4 For each culpable breach of the above mentioned obligations, the party concerned shall pay a contractual penalty placed at the reasonable discretion of the other party. The party in breach shall be granted the opportunity to prove that the loss or damage did not occur, that it was not as great as it was claimed to be, or that it was not in fact to blame.

6.5 The customer may only use the business relationship for advertising purposes with the prior written approval of esaqa.

7 Usage rights

7.1 Usage rights are transferred to the customer only upon full payment. Any usage granted prior to full payment may be revoked at any time.

7.2 The manufacturer’s terms of use apply for standard software and other copyrighted material. Such terms of use will be provided to the customer upon request, even before the contract is entered into. Unless stated otherwise in the manufacturer’s terms of use or in terms of use agreed between us and the customer, the following terms of use apply.

7.3 Unless agreed otherwise, the customer receives non-exclusive right to use the software for an indefinite period of time. This right is non-transferable. The customer is not permitted to grant usage rights to any third party.

7.5 Unless required otherwise by law, the customer is not authorised to duplicate, distribute, make publicly available, lease, modify or edit software or any written documentation provided.

7.6 Copyright and registration information, particularly software registration codes, may not be removed or altered.

7.7 We are entitled, without prejudice to other rights, to demand a contractual penalty determined on a case-by-case basis in accordance with Section 315 BGB for each case in which the customer culpably violates the above provisions. The amount of the contractual penalty may be reviewed by the competent court.

8 customer cooperation in the event of defects

8.1 In the event of a repair, the customer must provide us with the information required to diagnose and resolve the fault(s), if necessary upon request. For repairs involving remote data transmission or telephone communication, the customer must provide a trained, competent employee to help. For on-site cures, we must be given unobstructed access to the defective goods and, if necessary, other work on the customer’s hardware or network must be suspended.

8.2 The customer is required to provide a sufficiently detailed description of the hardware or software defect to reproduce the defect.

8.3 If the customer claims its right to claim cure by us, and it is subsequently found that the claim is unsubstantiated (e.g. user error, improper handling of goods, absence of defect), the customer is required to reimburse us for all costs incurred by the inspection of goods and re-delivery or repair, unless the customer is not responsible for making the claim.

8.4 If a system outage is caused by us, we will recover the data using the latest data backup performed by the customer before the outage. The customer must provide the corresponding data in a machine-readable format.

8.5 The customer must inform us immediately if a claim is made against the customer for the violation of a third party’s rights, or if an injunction against further use of the delivered item has been issued against the customer.

9 Maintenance and support

Hardware and software maintenance and support require a separate contract.

10 Data storage

The customer consents to the storage by esaqa of those of his data which are relevant to the performance of the contract.