Terms and conditions of business

GENERAL CONDITIONS OF PURCHASE

of MAINCOR AG to be used in business dealings with companies

Schweinfurt, 1/1/2011

1.	General
1.1.	The following provisions shall apply to the contractual services assumed by MAINCOR AG (hereinafter referred to as “MAINCOR”) with regard to its contractual partners (hereinafter referred to as „Supplier“ in this order: the individual contractual agreement of the parties; these general terms of delivery and payment; the German Civil Code [BGB].
1.2.	These General Conditions of Purchase (hereinafter referred to as “GTC”) only apply towards companies as defined by section 14 of the German Civil Code [BGB] and towards corporate bodies under public law and special funds under public law.
1.3.	Upon receipt or acceptance of the order (item 2 of these GTC), the Supplier accepts these GTC of MAINCOR for all contracts concluded between MAINCOR and the Supplier concerning the provision of services and delivery of goods (hereinafter referred to as “delivery item”), and concerning any contractual declaration. These GTC are considered as a framework agreement for future contracts on the delivery and provision of delivery items with the same Supplier without MAINCOR having to point to these GTC again in individual cases; this shall also apply to any change of these GTC if MAINCOR points to any such change.
1.4.	These GTC have exclusive effect. Any differing, conflicting or supplementing general delivery conditions or GTC of the Supplier will only become part of the contract if and to the extent MAINCOR has expressly agreed to their application in writing. This requirement of approval shall apply in any case, for example, even if MAINCOR has not explicitly objected to these differing, conflicting or supplementing terms and conditions of the Supplier or if MAINCOR accepts without reservation the Supplier’s delivery or provision being aware of the terms and conditions which are conflicting, differing from its terms and conditions or supplementing or if it pays the delivery or provision in full. Any other terms and conditions, individual understandings, contracts or agreements will only be binding if they have been agreed upon in writing. In these cases, the GTC of MAINCOR shall apply complementarily.
2.	Offer and conclusion of the contract
2.1.	Orders, offers, inquiries and contracts regarding the delivery and provision of delivery items require the written form. The written form shall be deemed as observed in the case of transmission via facsimile or by means of electronic data transmission to the responsible department of the Supplier.
2.2.	Offers of the Supplier shall comply with the inquiries, standards, specifications or other requirements specified by MAINCOR and shall meet the legal and other general requirements. In the case of a derogation, the Supplier is obliged to explicitly point to the derogation. If any country-specific, legal or quality-related objections are contrary to the inquiries, standards, specifications or other requirements, the Supplier shall inform MAINCOR of any such objections in advance; this shall also apply if technical developments are not considered in the inquiries, standards, specifications or other requirements or if the delivery item has to be changed when proven necessary upon execution. Any such changes require the prior written consent of MAINCOR. Estimates of costs established by the Supplier shall be binding in the absence of other written agreements and shall, just as offers of the suppliers, not be remunerated by MAINCOR.
2.3.	MAINCOR shall be bound to an offer submitted by MAINCOR for 5 business days starting on the date, on which the offer was submitted. If MAINCOR’s offer is submitted by means of data transmission, the period for acceptance of the offer by the Supplier shall be 5 business days starting on the date, on which the offer was submitted by MAINCOR. The Supplier may only accept the offer by means of a written statement towards MAINCOR within this period. This shall not apply if another period for acceptance of the offer is stated in MAINCOR’s offer. In this case, the Supplier may only accept the offer by means of a written statement towards MAINCOR within the period stated in this offer of MAINCOR.
2.4.	A late acceptance of the Supplier shall be deemed to be a new offer and shall require MAINCOR’s acceptance. Item 2.1. applies accordingly.
2.5.	The Supplier requires the express written consent of MAINCOR for passing on orders placed with the Supplier by MAINCOR to third parties.
2.6.	MAINCOR’s employees, other than executive bodies authorized to represent, holders of a special statutory authority or other authorized persons, are not entitled to make oral or written collateral agreements or oral or written commitments or undertakings which exceed the content of these GTC or the content of the contractual agreement or which differ from the content of these GTC or from the content of the contractual agreement.
2.7.	MAINCOR is entitled to demand changes of the delivery item with regard to design and quantity, even after conclusion of the contract if this is required due to special operational reasons and if the change is usual in the trade or reasonable for the Supplier. If the delivery item is changed, the two consequences (additional or reduced costs and delivery date) shall be considered in a reasonable way. The Supplier shall check MAINCOR’s change requests for any possible consequences within 5 business days and shall inform MAINCOR of the result in writing. Especially the consequences for the technical design, the costs and the schedule shall be pointed out.
3.	Quality and specification of services
3.1.	When the delivery of goods and provision of services is carried out, the deliveries and provisions shall comply with the valid quality standards, the state-of-art technology, the legal provisions applying to them, the current rules and standards of the European Community or with international rules and standards along with these provisions. Furthermore, all delivery items shall meet the agreed technical data.
3.2.	Product information and specification of services given by the Supplier shall be deemed as guaranteed characteristics or as binding statements on the nature of the respective delivery item, whether they are present in electronic or in other form or whether they are contained in the Supplier’s general product information as well as in the technical specifications or in price lists.
3.3.	The Supplier assumes the independent duty of advising MAINCOR on the selection and specification of the delivery item to be delivered and also particularly the duty of informing MAINCOR of any concerns regarding the fitness of the delivery item for the intended purpose. The Supplier shall inform MAINCOR of any concern in writing, immediately after the concern was recognized.
3.4.	With regard to measures, weights or quantities, the values determined upon the incoming goods control by MAINCOR shall be binding unless the Supplier proves that the values calculated by them were correctly determined according to a generally recognized method.
3.5.	MAINCOR is entitled to accept an excess quantity of the delivery item; however MAINCOR reserves the right to return excess quantities to the Supplier at Supplier’s risk and expense. Partial deliveries shall only be accepted by MAINCOR according to a written agreement. Delivered and residual quantities shall be stated exactly by the Supplier in the shipping documents.
3.6.	According to the rules of preferential origin of the European Community, the Supplier is obliged to inform MAINCOR of the origin of their delivery without being asked by presentation of suitable supplier declarations. In the case of deliveries at regular intervals, the Supplier shall comply with their obligation to produce the supporting documents by presenting unrestricted and unrestrained long-term supplier declarations. In other cases, the origin shall be proved by individual supplier declarations.
3.7.	The Supplier undertakes to inform MAINCOR of any obligation to obtain a permit in national and international trade which arise from the delivery item. For this purpose, the Supplier shall state the export list number according to annex AL of the German Foreign Trade Regulations or comparable export list information of applicable export lists in their offers, order confirmations and invoices.
3.8.	Any delivery and provision shall be carried out according to the legal provisions, regulations and ordinances on safety and environment as amended from time to time, particularly taking into account the requirement of declaration of ingredients. Contractual items which are entirely or partly made of substances which contain hazardous substances within the meaning of the Ordinance on Hazardous Substances or which release or produce such hazardous substances when interacting with other substances shall be transported and delivered considering the respective safety regulations. The Supplier is obliged to inform MAINCOR of such substances in writing submitting the respective safety data sheets.
3.9.	When carrying out any work on the premises of MAINCOR, the work rules of MAINCOR, their directives for outside companies and their safety regulations shall apply; MAINCOR’s provisions regarding safety at work and environmental protection shall be complied with.
4.	Delivery and delivery deadlines
4.1.	The contractually agreed delivery deadline or the contractually agreed delivery date shall be binding for the Supplier. The receipt of the delivery item at the place of performance shall be decisive for compliance with the delivery deadline or the delivery date.
4.2.	Item 4.1. shall also apply to the call-off dates and call-off quantities stated in the framework agreements of MAINCOR. Unless they are already contractually agreed, such call-offs become binding if the Supplier does not object within 3 business days starting upon receipt of the call-off. Moreover, the Supplier is obliged on MAINCOR’s request to stock further call-off quantities. If the Supplier’s stockage depends on any conditions, the Supplier shall inform MAINCOR of these conditions immediately.
4.3.	Accompanying documents of the consignment of goods, such as delivery notes, packing lists or batch numbers, shall be enclosed to the consignment of goods and shall substantially comply with the shipping documents. The delivery note shall contain the order number and the indication of contents. The delivery item shall be packed properly and marked in accordance with the applicable provisions.
4.4.	If the Supplier has to deliver material samples, inspection records, quality documents, test reports or other contractually agreed documents, the completeness of the delivery and provision also requires the complete receipt of material samples, inspection records, quality documents, test reports or other contractually agreed documents by MAINCOR.
4.5.	If the delivery item is delivered before the agreed delivery deadline or before the agreed delivery date, MAINCOR is entitled to refuse the delivery and to return it at the Supplier’s cost and risk. Otherwise MAINCOR will stock delivery items delivered in advance on the Supplier’s cost and risk until the agreed delivery deadline or the agreed delivery date expire; MAINCOR is entitled to have the stockage carried out by third parties or on third party’s premises under the same conditions.
4.6.	If circumstances occur or become obvious due to which the agreed delivery deadline or the agreed delivery date cannot be complied with, the Supplier is obliged to inform MAINCOR immediately in writing of any delay in delivery stating the reasons and the expected duration of the delay. The Supplier undertakes to take the necessary steps to comply with the agreed delivery deadline or the agreed delivery date at their own expense.
4.7.	Irrespective of item 4.6. the Supplier is fully and unrestrictedly responsible - even without any fault on their part - for the timely procurement of the supplies and provisions required for the delivery item (full assumption of the procurement risk).
4.8.	In the case of delay in delivery by the Supplier, MAINCOR is entitled to the statutory rights. MAINCOR is particularly entitled to claim damages instead of performance and rescission of the contract if a reasonable deadline has expired without results. If MAINCOR claims damages, the Supplier shall be entitled to prove that they were not responsible for the breach of duty.
4.9.	In the case of a delay in delivery by the Supplier, MAINCOR is entitled to claim a contractual penalty in addition to the statutory rights. The contractual penalty amounts to 0.2% of the agreed net price between the 1st day and the 30th day of delay in delivery for each commenced day of delay in delivery and to 0.5% of the agreed net price from the 30th day of delay in delivery for each commenced day of delivery. However the contractual penalty shall be limited to 20% of the net price for every single case of delay in delivery. Taking into account the contractual penalty, the assertion of damages exceeding the contractual penalty remains unaffected. In all cases, the Supplier has the chance to prove that MAINCOR’s loss was actually less.
4.10.	If MAINCOR connects their deadline extension according to item 4.8. with a request to the Supplier to inform MAINCOR whether the Supplier will be able to deliver within the deadline extension set by MAINCOR, MAINCOR may exercise their rights named in item 4.9. after expiry of a short reasonable respite if MAINCOR referred to exercise of these rights in the request.
4.11.	An acceptance without reserve of the late delivery by MAINCOR shall not exclude assertion of the contractual penalty; any further claims shall also persist without a reservation made upon acceptance.
4.12.	A default of necessary papers, documents, data, samples or the like to be provided by MAINCOR shall only exclude a delay in delivery by the Supplier if the Supplier has requested provision of the papers, documents, data, samples or the like in writing and has not received these from MAINCOR within a reasonable deadline.
4.13.	If MAINCOR is in default of acceptance or in debtor’s delay, a possible damage claim of the Supplier against MAINCOR shall be restricted to 1% of the net price for every complete week, however to a maximum of 15% of the net price, as far as the delay is not caused by intent or gross negligence, and in the case of personal injury also by a negligent breach of duty of a legal representative or a vicarious agent of MAINCOR. This maximum amount of damage shall also apply in the case of final non-acceptance or abandonment of the delivery by MAINCOR. MAINCOR and the Supplier reserve the right to prove that no damage has occurred or that the damage was essentially lower, or, in the case of the Supplier, that the damage was higher than the lump sum.
5.	Exemption from the obligation to perform
5.1.	In cases of force majeure, MAINCOR and the Supplier shall be exempt from their respective obligation to perform for the duration and to the extent of the disturbance. Force majeure includes strikes, lockouts, acts of God or similar unforeseeable incidents. The contractual partners are obliged to inform each other immediately as far as reasonable and to adapt their respective contractual obligations to the changed situation in good faith.
5.2.	As far as MAINCOR is not responsible for the prevention and if the delivery cannot be used by MAINCOR any more due to the delay caused by force majeure taking into account the economic points of view, MAINCOR may withdraw from the contract entirely or partly without being liable for compensation. In the case of withdrawal, MAINCOR shall immediately reimburse any possibly already received services to the Supplier.
5.3.	If the Supplier demands opening of insolvency proceedings or if insolvency proceedings are opened or if the opening of insolvency proceedings is refused for lack of assets or if the Supplier stops payments, MAINCOR may withdraw from the contract. In this case, MAINCOR is entitled to make use of the provisions so far supplied by the Supplier against a reasonable remuneration.
5.4.	MAINCOR shall also have a right to withdraw from the contract if the Supplier grants or promises to grant any benefit to an employee of MAINCOR charged with the preparation, the conclusion or the performance of the contract or to a third party acting on behalf of MAINCOR.
5.5.	The statutory rights to withdraw from the contract remain unaffected.
6.	Place of performance and passing of the risk
6.1.	Unless otherwise provided in the contractual agreement, the seat of MAINCOR shall be the place of performance.
6.2.	The risk is passed on to MAINCOR upon delivery and acceptance of the performance object at the place of performance.
6.3.	The Supplier is obliged to observe instructions and forwarding instructions of MAINCOR or of the forwarding agent or of the carrier. The delivery item shall be secured in such a way that an endangerment of the delivery item is excluded. In absence of a contractual regulation, the Supplier is obliged to take back the packaging material.
6.4.	The Supplier is furthermore obliged to exactly state the order numbers, item numbers and transaction numbers of MAINCOR on all shipping documents and delivery notes; otherwise MAINCOR shall not be responsible for delays resulting from this, additional costs shall be borne by the Supplier.
6.5.	If no other agreement was concluded between MAINCOR and the Supplier, the expenses of the transport, including the costs of packaging and insurance as well as any other ancillary costs, to the place of performance shall be borne by the Supplier. This also applies to any additional costs which are required for an accelerated delivery in order to comply with the delivery deadline.
7.	Prices and payment terms
7.1.	The price stated in the order or agreed upon by the contractual parties is a fixed price which is binding unless the parties have agreed otherwise in writing. This applies especially to price escalation clauses; these shall only apply if agreed explicitly in writing. The price according to item 6.5. also includes the costs for transport and the related ancillary costs, particularly the costs for packaging and transport insurance, as well as the costs for the material testing method and for the creation of test reports. In the case of domestic suppliers, the legal turnover tax shall not be included in the fixed price, but shall be shown separately.
7.2.	If the price is determined for delivery ex works of the Supplier, the Supplier shall ship the delivery at the lowest possible prices unless MAINCOR has provided a special method of transport. The Supplier shall bear the additional costs possibly caused by a derogation from the transport instructions to be observed.
7.3.	Claims due to additional deliveries and provisions shall only be produced from prior written agreement on the provision of additional deliveries or supplies and on the respective remuneration; otherwise, any additional claims of the Supplier exceeding the fixed price shall be excluded.
7.4.	In the absence of another contractual agreement, MAINCOR shall not grant any remuneration for performances, presentations, negotiations, preparation of offers and projects.
7.5.	The Supplier is obliged to prepare a separate invoice according to the provisions of item 7.6. for every order.
7.6.	Invoices of the Supplier shall only be processed by MAINCOR if the invoices - according to the specifications of the order - contain the stated order number and the stated purchase order indicator as well as the statements or documents agreed upon in the order (e.g. performance records, material certificates, materials testing and measuring protocols, test reports and quality certificates) and are issued to the correct invoice recipient. In the case of intra-community deliveries and provisions, the invoice shall furthermore only be paid if the Supplier has proved the origin of the delivery item within the meaning of an intra-community delivery by means of certificates suitable and recognized for this purpose and of delivery of these certificates to MAINCOR. The supplier shall be responsible for all consequences resulting from the non-observance of this obligation unless they prove that they are not responsible for them.
7.7.	Unless otherwise agreed, payment of the purchase price shall become due 30 days after the complete delivery of the delivery item, the receipt of an auditable invoice and of all contractually required documents according to item 7.6. In the case of payment within 20 days after receipt of an auditable invoice, calculated from the delivery of the delivery item and all contractually required documents, the Supplier shall grant MAINCOR a discount amounting to 3% of the agreed remuneration. MAINCOR shall only be in default with payment of the agreed remuneration if MAINCOR does not pay following to a reminder of the Supplier which was made after the due date of the agreed remuneration.
7.8.	With partial deliveries or partial provisions, payment becomes only due with the last delivery unless otherwise agreed. This shall not apply to contracts for delivery by installment. Item 7.6. applies accordingly.
7.9.	Payment shall be made by bank transfer. The Supplier shall communicate their account details to MAINCOR.
7.10.	The payment of the invoice by MAINCOR shall not be deemed as a waiver of claims based on defects and shall not exclude a subsequent notice of defect.
7.11.	Payments of MAINCOR shall be made under the reserve of due performance of the contract and of due invoicing by the Supplier. If defects are present, MAINCOR is entitled to a right of retention in reasonable proportion to the defects and to the expected costs of supplementary performance. MAINCOR shall also have a right of retention for the respective contractual relationship with the Supplier if defects are determined in a prior delivery of the Supplier which was already paid by MAINCOR.
7.12.	MAINCOR shall have the statutory rights of set-off and retention to the full extent. MAINCOR is entitled to cede all rights resulting from the contractual agreement without the Supplier’s consent.
8.	Claims based on defects
8.1.	The Supplier guarantees and assures that the delivery item complies with the agreed specifications of the order, consists of the agreed material, is free of defective material, production and design and is free of rights of third parties, that it complies with the state-of-the-art technology and that it does not have any defect which cancels or lessens the fitness of the delivery item for the contractually agreed or usual use or which cancels or lessens the value of the delivery item. Furthermore the Supplier assures and guarantees that the delivery item fully complies with the samples and descriptions delivered by them and with the effective legal provisions.
8.2.	MAINCOR is obliged to check the delivery item within a reasonable period after delivery of the delivery item for any deviations with regard to quality and quantity and to give notice of defects. The notice of defect shall be deemed in due time if it is received by the Supplier within 10 business days calculated from the delivery of the delivery item in the case of externally visible (obvious) defects and within 10 business days calculated from the moment when the deviation of quality or quantity was determined otherwise and in the case of latent defects.
8.3.	The claims based on defects of MAINCOR towards the Supplier are governed by the legal provisions. In any case, MAINCOR is entitled to demand removal of the defect or delivery of a new delivery item of the Supplier at MAINCOR’s choice. Subsequent improvement is deemed to be failed after the first unsuccessful attempt.
8.4.	The Supplier shall bear all expenses required for the purpose of removal of defects or replacement delivery; this applies especially but is not limited to transport, travel, material and work expenses and to costs resulting from sorting and testing and to the costs incurred by MAINCOR with regard to the relationship to their customers. These costs also include the costs of return of defective delivery items to the Supplier. Item 8.10. remains unaffected.
8.5.	MAINCOR is entitled to have subsequent improvement carried out at the Supplier’s expense without setting a time limit with regard to the Supplier if the delivery is carried out after a delay in delivery has occurred. Furthermore, MAINCOR is entitled to carry out the removal of defects themselves or have it carried out by third parties at the Supplier’s expense or to provide replacement at the Supplier’s expense in cases of imminent danger and of urgency and as far as a request to the Supplier for removal of the defect within a reasonable period of time would be unreasonable for MAINCOR. The same applies if the removal of the defect by the Supplier has failed or if the Supplier unjustifiably refuses removal of the defect or if a reasonable grace period set by MAINCOR expires unsuccessfully or if the Supplier is in delay with performance of their warranty obligation. MAINCOR is entitled to claim an appropriate and reasonable advance payment from the Supplier.
8.6.	MAINCOR’s legal rights of recourse within a supply chain shall also apply if, at the end of the supply chain, the object is not delivered to a consumer but to a company. The rights of recourse shall also apply in case of a defective delivery of raw materials or component parts by the Supplier.
8.7.	The right to claim for damages, especially the right to claim for damages instead of performance remains explicitly reserved; this also applies in case of a merely irrelevant deviation of the delivery item from the agreed nature or in case of a merely irrelevant impairment of the delivery item’s usefulness.
8.8.	The limitation period for MAINCOR’s claims and rights due to defects of the delivery item - for whatever legal ground - shall be 36 months starting with the passing on of the risk. Longer legal limitation periods shall remain unaffected just as the provisions on the beginning of the limitation period, the suspension of the limitation period, the suspension and the restart of time limits.
8.9.	The Supplier shall be liable for replacement deliveries and subsequent improvements to the same extent to which they were liable for the original delivery item. The warranty period for replacement deliveries shall start at the earliest when the replacement delivery is delivered.
8.10.	Both in the case of subsequent delivery and in the case of withdrawal, MAINCOR may set a reasonable time limit for collection of the defective delivery item. If the time limit expires unsuccessfully, MAINCOR is entitled to exploit the delivery item at the Supplier’s expense and to pay the proceeds to the Supplier under reserve of the Supplier’s interests.
9.	Liability
9.1.	The Supplier shall be liable within the framework of the legal provisions.
9.2.	As far as the Supplier is responsible for a product defect, they are obliged to indemnify MAINCOR upon first request against claims for damages of third parties, including the necessary costs for contesting these claims.
9.3.	In the framework of their liability for loss or damage within the meaning of item 9.1., the Supplier is also obliged to refund any expenses incurred by MAINCOR in connection with a product recall carried out by MAINCOR. MAINCOR will inform the Supplier about the content and the extent of the product recall to be carried out - as far as possible and reasonable - and will give the Supplier the chance to give their opinion. Any other statutory claims remain unaffected.
9.4.	Furthermore, the Supplier shall indemnify MAINCOR against all claims of MAINCOR’s customers which the customers assert due to advertising messages of the Supplier, of an upstream supplier of the Supplier (as a manufacturer within the meaning of section 4 subsection 1 or 2 Product Liability Act) or of an assistant of the aforementioned and which would not exist or not exist in this kind or to this extent without the advertising message. This applies regardless of whether the advertising message occurs before or after conclusion of this agreement.
9.5.	The Supplier is obliged to conclude and maintain a product liability and recall insurance with an insured sum of at least 10 million EUR per personal injury/property damage. Any further statutory claims of MAINCOR shall remain unaffected. The Supplier shall prove existence of these insurances on MAINCOR’s request.
10.	Industrial property rights
10.1.	MAINCOR considers the delivery of products which are free of defects of title by the Supplier as an essential duty of the contract. For this reason, the Supplier guarantees that no trademark rights, patent rights and copyrights or other industrial property rights of third parties are infringed in connection to their delivery.
10.2.	If claims are asserted against MAINCOR by a third party because the delivery of the Supplier infringes an industrial property right of a third party, the Supplier is obliged to indemnify MAINCOR against these claims upon first written request.
10.3.	The Supplier’s duty of indemnification according to item 10.2. also relates to all necessary expenses which are incurred or necessarily incur by MAINCOR due to or in connection with the claim by third parties and the respective defense. MAINCOR is not entitled to recognize third parties’ claims or to conclude agreements with third parties with regard to these claims without the written consent of the Supplier.
11.	Design models, drawings, molds and supplied components
11.1.	If MAINCOR supplies or provides design models, drawings, standard sheets, artwork, compression films, tools, gages, profiles, molds, materials, substances and the like (hereinafter referred to as “supplied components”) before or after conclusion of the contract, MAINCOR reserves the property rights and copyrights. The Supplier is obliged to insure the supplied components at purchase value against damage caused by fire, water and theft at their own expense, to carry out any required maintenance and inspection work in due time and at their own expense, to keep them carefully and to repair them free of charge, to replace them in case of need and to return them to MAINCOR in a serviceable condition after use. The Supplier shall immediately inform MAINCOR of any event of default; if they culpably fail to do this, MAINCOR’s claims for damages remain unaffected.
11.2.	Without MAINCOR’s consent, the supplied components and the goods produced according to them or with them must only be used for the intended purpose and for the production of the delivery item ordered by MAINCOR. They must not be used, copied, reproduced, passed on to third parties or disclosed for other or own purposes of the Supplier. This obligation shall also apply after performance of this contract; it expires if and as far as the production knowledge contained in the supplied components has become common knowledge. In cases of infringement, the Supplier shall be obliged to pay damages.
11.3.	Processing and remodeling of the components supplied by MAINCOR shall be made for MAINCOR. If the supplied components are processed with other objects not belonging to MAINCOR, MAINCOR gains the co-ownership of the new object in relation to the value of their objects with regard to the other processed objects at the time of processing.
11.4.	If the components supplied by MAINCOR are mixed inseparably with other objects not belonging to MAINCOR, MAINCOR gains the co-ownership of the new object in relation to the value of their objects with regard to the other mixed objects at the time of processing. If the mixing is made in such a way that the object of the Supplier is considered as the main object, it is deemed to be agreed that the Supplier shall transfer proportional ownership to MAINCOR; the Supplier keeps in custody the sole ownership or co-ownership for MAINCOR.
11.5.	If the Supplier has manufacturing problems, especially if the Supplier does not comply with their contractual obligations or terminates production, MAINCOR shall be entitled to demand transfer of the molds etc. entirely or partly paid by MAINCOR against a reasonable remuneration. The destruction of molds etc. which are not needed any more is only permissible with MAINCOR’s written consent.
11.6.	The components supplied by MAINCOR shall be returned to MAINCOR without request after performance of the order or processing of the contract.
12.	Confidentiality, data protection and fiduciary duty
12.1.	The contractual parties undertake to mutually behave in a loyal way. In particular, they must not entice away individual employees of the other contractual partner.
12.2.	The contractual partners undertake to keep strictly confidential any figures, drawings, calculations, data and other documents and information of the other contractual partner which became known to them directly or indirectly within the framework of the contract, whether oral, written or in any other way and to only use them for the purpose of this contract, even after the contract’s termination. This shall also apply to figures, drawings, calculations, data and other documents and information which were not identified or transferred as being confidential, as far as these figures, drawings, calculations, data and other documents and information are considered to be confidential. This shall not apply if the figures, drawings, calculations, data and other documents and information were already disclosed and open to third parties or if these figures, drawings, calculations, data and other documents and information are transferred by a third party which is not subject to confidentiality or if these figures, drawings, calculations, data and other documents and information imperatively have to be communicated due to a law and if this data and information is disclosed to the lawyers and auditors of the respective contractual partner for the purpose of counseling.
12.3.	The figures, drawings, calculations, data and other documents and information must only be disclosed to third parties with MAINCOR’s express written consent. The obligation to observe secrecy shall also extend to personal data. The obligation to observe secrecy shall also apply after performance or failure of this contract.
12.4.	The contractual partners shall ensure that all employees and third parties who are charged with performance of the contractual obligations are also subject to this obligation to observe secrecy.
12.5.	The contractual partners waive assertion of any claims for damages which result from the fact that unauthorized third parties obtain access to the respective figures, drawings, calculations, data and other documents and information of the contractual partner in an illegal way. This does not apply if the access became possible due to a breach of duty of the contractual partner.
12.6.	Statutory provisions, especially provisions regarding data protection, shall remain unaffected.
12.7.	The conclusion of the contract shall be kept confidential. The Supplier shall only mention the business relationship with MAINCOR in their advertising material with MAINCOR’s written consent.
13.	Reservation of title MAINCOR does not recognize any extended or prolonged reservation of title. A simple reservation of title shall only be recognized by MAINCOR if the simple reservation of title entitles MAINCOR to sell, process or mix the delivery item in the framework of usual business.
14.	Other provisions
14.1.	The Supplier shall ensure that they or their contractual partners do not infringe any provisions under public law or any other compulsory statutory provisions. If and as far as a behavior of the Supplier which is contrary to the contract leads to claims against MAINCOR, the Supplier shall indemnify MAINCOR against these claims.
14.2.	The transfer of rights and obligations resulting from this contract, including claims by the Supplier, to third parties requires the prior written consent of MAINCOR. This includes the performance of the main service owed by the Supplier by third parties (subcontractor).
14.3.	The Supplier is only entitled to set off against counterclaims which are undisputed and established as final and absolute. A right of retention of the Supplier due to claims shall be excluded unless the right of retention is based on the same contractual relationship.
14.4.	The Supplier shall inform MAINCOR in due time if they need to enter MAINCOR’s premises. The instructions of MAINCOR’s personnel shall be observed and the provisions of the German Road Traffic Regulations shall be complied with. MAINCOR and their employees shall only be liable - for whatever reason - for gross negligence and intent and in cases of injury of life, body or health also for simple negligence.
14.5.	The contract based on these GTC is exclusively governed by the law of the Federal Republic of Germany - to the exclusion of the UN Sales Convention. The place of jurisdiction is the domicile of MAINCOR unless the Supplier is a corporate body under public law or a special fund under public law. Irrespective of this agreement on jurisdiction, MAINCOR may also enforce its rights against the Supplier before any other court which is competent according to the applicable law. The contractual language is German. These GTC are available in German and in English. In the case of deviations of the two versions, the GTC written in German shall apply.
14.6.	Any amendments and supplements to the contract based on these GTC and to these GTC themselves must be made in writing. This also applies to this provision on the written form.
14.7.	The Supplier is informed according to the provisions of the German Data Protection Act that their data are saved and processed by means of electronic data processing for performance of the business relationship.
14.8.	If any provisions are or become ineffective, this does not affect the effectiveness of the remaining provisions. The ineffective provision will be deemed replaced from the beginning with an effective one the meaning and purpose and the letter of which correspond or come close to the ineffective provision. In case of gaps a provision is deemed agreed upon from the beginning that reflects what the parties reasonably would have agreed upon according to the meaning and purpose of these GTC if they had considered such gap.

GENERAL TERMS AND CONDITIONS FOR DELIVERY AND PAYMENT

of MAINCOR AG to be used in business dealings with companies

Schweinfurt, 1/1/2011

1.	General
1.1.	The following provisions shall apply to the contractual services assumed by MAINCOR AG (hereinafter referred to as “MAINCOR”) with regard to its contractual partners (hereinafter referred to as “Buyer”) in this order: the individual contractual agreement of the parties; these general terms of delivery and payment; the German Civil Code [BGB].
1.2.	These General Terms of Delivery and Payment (hereinafter referred to as “GTC”) only apply towards companies as defined by section 14 of the German Civil Code [BGB] and towards corporate bodies under public law and special funds under public law.
1.3.	The GTC particularly apply to contracts on the sale or the delivery of movable property (hereinafter also referred to as “Goods” or “Delivery item”), regardless of whether MAINCOR produces the Goods itself or purchases them from suppliers (sections 433, 651 BGB). These GTC are considered as a framework agreement for future contracts on the sale and delivery of movable property with the same Buyer without MAINCOR having to point to these GTC again in individual cases. This shall also apply to any change of these GTC if MAINCOR points to any such change.
1.4.	These GTC have exclusive effect. The Buyer accepts these GTC upon placement of the order or upon acceptance of the Goods at the latest. Any differing, conflicting or supplementing general purchase conditions or GTC of the Buyer will only become part of the contract if and to the extent MAINCOR has expressly agreed to their application. This requirement of approval shall apply in any case, for example, even if MAINCOR, being aware of the general purchase conditions or GTC of the Buyer, makes the delivery to the Buyer without reservation . Any other terms and conditions, individual understandings, contracts or agreements will only be binding if they have been agreed upon in writing. In these cases, the GTC of MAINCOR shall apply complementarily.
1.5.	Legally relevant statements and notifications which have to be made by the Buyer to MAINCOR after conclusion of the contract (e.g. setting of time limits, notices of defect, statement of withdrawal or reduction) shall be made in writing to become effective..
1.6.	References to the validity of statutory provisions only serve clarification purposes. Even without such a clarification, the statutory provisions apply unless they are directly changed or explicitly excluded in or by these GTC.
2.	Specification of services For the products of MAINCOR, the operating manuals, product descriptions, technical handbooks and installation instructions of MAINCOR shall apply, which are available on www.maincor.de.
3.	Offer and conclusion of the contract
3.1.	MAINCOR’s offers shall be subject to change and without obligation unless the obligation was explicitly stated in the offer. This shall also apply if MAINCOR has passed over catalogs, technical documentation (such as drawings, plans, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - to the Buyer. As far as MAINCOR’s offer is not binding by way of exception, a conclusion of the contract shall only take place upon the written confirmation of the order following the legally binding order of the Buyer. MAINCOR’s sales employees are not entitled to make oral collateral agreements or oral commitments which exceed the content of the written contract.
3.2.	The Buyer’s order of the Goods is considered as a binding offer unless otherwise stated expressly in this order. MAINCOR is entitled to accept an order of the Buyer which is to be considered as binding within 2 weeks by sending a written confirmation of the order or by performing the contractual service with regard to the Buyer within the same period; in case of in-stock products or available stock, this period is reduced to one week.
3.3.	In case of long-term or continuous business relationships with a Buyer, the original plans and product descriptions available to MAINCOR remain valid, whether they originate from MAINCOR or from the Buyer, in case of a repeat order or reorder unless the Buyer points explicitly and in writing to its change requests or highlights them in plans and product descriptions as a change request with regard to MAINCOR.
4.	Prices, payment terms and delay in payment
4.1.	Unless stipulated otherwise, MAINCOR shall adhere to the prices contained in its binding offer for four weeks starting on the date of the offer. In any other case, the prices stated in MAINCOR’s confirmation of order shall be authoritative. Additional deliveries and services of MAINCOR shall be invoiced separately. All prices are quoted in Euro. Item 3.1. remains unaffected.
4.2.	Unless agreed otherwise, the prices of MAINCOR are calculated ex works; packaging costs, costs for loading, freight and installation are not included in the price. The remuneration stated in the contract or in the order does not include the statutory turnover tax. Turnover tax is shown separately in the invoice at the legally applicable rate on the day of invoicing.
4.3.	Unless otherwise agreed upon with the Buyer in writing, payment of the contractual services shall be due within 30 days from the date of the invoice without deduction. A payment shall only be deemed as effected when the payment contractually due is received by MAINCOR or on one of the accounts stated in MAINCOR’s invoice. If a draft or a check is accepted, payment shall only be deemed as effected when the draft or check is honored. The acceptance of drafts always requires a prior written agreement with MAINCOR. If a draft is accepted, the discount and collection fees of the bank shall be invoiced in addition to the purchase price.
4.4.	If the agreed delivery time exceeds a period of six weeks from conclusion of the contract or if the delivery is deferred by more than six weeks from conclusion of the contract due to reasons, for which the Buyer is solely responsible or which are solely in the Buyer’s risk area, MAINCOR is entitled to adjust the agreed price as far as essential changes of energy, material, work and raw material costs have occurred after conclusion of the contract. If the increase amounts to more than 10% of the originally agreed remuneration, the Buyer is entitled to withdraw from the contract; the right of withdrawal shall be declared in writing. This right of withdrawal does not apply if the Buyer does not exercise it towards MAINCOR within a period of two weeks from the date of notification of the price adjustment.
4.5.	The Buyer falls into arrears without further statement by exceeding the period given in item 4.3. or deviating from this by exceeding an agreed payment date. In case of default, MAINCOR may demand default interest of 8 percentage points above the base rate as of the due date. MAINCOR reserves the right to prove a higher damage caused by default exceeding the default interest of 8 percentage points above the base rate. The Buyer is entitled to prove that the damage caused by default to MAINCOR was not higher than 8 percentage points above the base rate. In case of default by the Buyer, MAINCOR is entitled furthermore to withhold performance of further contractual services until the Buyer has made payment or granted a security in form of an absolute, irrevocable and unlimited guarantee of a German major bank or savings bank at MAINCOR’s discretion.
4.6.	If the Buyer does not meet its due obligation to pay in spite of a reminder with a set time limit, MAINCOR may withdraw from the contract and demand compensation according to the statutory provisions including the lost profit. However, MAINCOR has to allow setting off of what MAINCOR has saved due to the contract’s cancellation or gained by use of its employees elsewhere or omitted to gain with malicious intent. As far as MAINCOR has to allow setting off of saved expenses, MAINCOR shall meet its obligation to prove accuracy of these savings if MAINCOR proves the difference between the expected and the actual operational course of loading by an independent tax consultant or a comparable expert by means of figures which the independent tax consultant or the comparable expert has plausibly obtained from MAINCOR’s books. Deviating from this, MAINCOR may fix a lump sum of 60% of the remuneration accounting for the services not performed for the savings to be deducted. The Buyer reserves the right to prove that the costs actually omitted due to the cancellation exceed the aforementioned lump sum. MAINCOR’s obligation to allow setting off of any additional income due to another possible use of MAINCOR’s employees shall remain unaffected.
4.7.	In the case of economic inability of the Buyer, particularly in the case of insolvency proceedings or legitimate doubts regarding the continuous financial soundness, MAINCOR may claim all undue receivables from the business relationship with the Buyer and demand an advance payment for future services.
4.8.	If defects are present, the Buyer shall not be entitled to a right of retention unless the right of retention is based on the same contractual relationship and the delivery is obviously defective; in such a case, the Buyer shall only be entitled to a right of retention if the retained amount is in a reasonable relation to the defects and the expected costs of supplementary performance, especially of a removal of defects. Even if notices of defects or counterclaims are asserted, the Buyer shall only be entitled to set off if the counterclaims are established as final and absolute, if they were recognized by MAINCOR or if they are undisputed. The Buyer is not entitled to assert claims and rights due to defects if it has not made the payments due and if the amount due is in reasonable relation to the value of the delivery which is defective.
4.9.	The Buyer shall only be allowed to cede claims to which it is entitled from MAINCOR to third parties with MAINCOR’s prior written consent.
4.10.	If the Buyer is obliged to make payments to MAINCOR from several obligations and if a payment made by it is not sufficient to settle all debts, MAINCOR shall be entitled to credit the Buyer’s payments - in spite of contrary specifications of the Buyer - against the older debts first. If the Buyer has to pay interest and expenses in addition to the principal claim, MAINCOR shall be entitled to credit a payment, which is not sufficient for settlement of the entire debt, against the costs, then against the interest and last against the principal claim. MAINCOR shall inform the Buyer on how the payment was settled.
5.	Time of delivery and performance
5.1.	Dates and deadlines are not binding unless they are agreed to be binding explicitly and in writing. The Buyer may ask MAINCOR in writing to deliver within a reasonable period after a non-binding delivery date or a non-binding delivery deadline was exceeded by four weeks.
5.2.	The start of the period is postponed until possible duties of the Buyer to cooperate have been fulfilled, including but not limited to the procurement of documents, plans, permits and clearances to be obtained by the Buyer as well as the compliance with agreed payment conditions and other obligations of the Buyer.
5.3.	MAINCOR may, notwithstanding MAINCOR’s rights from delay of the Buyer, demand from the Buyer an elongation of times of delivery and performance or a postponement of the times of delivery and performance by the period, in which the Buyer does not comply with its contractual obligations towards MAINCOR.
5.4.	The time of delivery shall be considered as met if MAINCOR informs the Buyer of the readiness for shipment within the time of delivery.
5.5.	MAINCOR shall not be liable for the impossibility of delivery or for delay in delivery if these were caused by force majeure or by other events which were not foreseeable when the contract was concluded and if MAINCOR is not responsible for these; cases of force majeure or other events which were not foreseeable include mobilization, war, strikes, lock-outs, natural disasters, operational defaults of any kind, difficulties in procurement of material and energy, delays in transport, lack of labor, lack of energy or raw materials, difficulties in obtaining the required official authorizations or the delivery by suppliers which is missing, wrong or not in due time in spite of a congruent covering operation which was concluded before and similar unforeseeable events. This also applies if the circumstances arise on part of subcontractors or suppliers charged or called in by MAINCOR to fulfill the contract, and it has not been possible to call in other subcontractors or suppliers. MAINCOR may also not be held responsible for the aforementioned circumstances if they occurred during a default already at hand. MAINCOR shall inform the Buyer in writing immediately, however at the latest within one week after the event impeding the performance became known, of the impediment and the respective reasons.
5.6.	In case of a merely temporary impediment according to item 5.5., the deadlines and dates shall be postponed by the duration of the event impeding the performance plus a reasonable starting time after termination of the event suspending the deadline. If an impediment according to item 5.5. makes a delivery or service for MAINCOR essentially more difficult or impossible and if the impediment is not removed within a period of four months, MAINCOR may entirely or partly withdraw from the contract. Furthermore MAINCOR may demand from the Buyer to give a declaration whether they will withdraw from the contract due to the performance’s delay or whether they insist on delivery. If the Buyer does not give a declaration MAINCOR also may withdraw from the contract. In both cases, MAINCOR may withdraw from the contract without being liable for damages. In case of withdrawal, MAINCOR shall immediately reimburse the respective service, which it might have received already, to the Buyer.
5.7.	The occurrence of a delay in delivery by MAINCOR is governed by the legal provisions. However in any case, the Buyer shall grant MAINCOR a reasonable grace period - starting on the day on which the written notice of default is received by MAINCOR or in the case of a calendar-based deadline starting on the following day.
5.8.	If MAINCOR falls in arrears with a delivery or service or if a delivery or service becomes impossible for MAINCOR, except for the cases of items 5.4. to 5.6., MAINCOR’s liability shall be limited to damages according to item 8.
5.9.	MAINCOR shall at any time be entitled to partial deliveries and partial services as far as this is reasonable for the Buyer and no disadvantages are caused to the Buyer.
5.10.	If the Buyer falls into arrears with accepting the goods, MAINCOR is entitled to demand compensation of the resulting damage and possible additional expenses. The same applies if the Buyer culpably has breached their duty to cooperate. Upon occurrence of default of acceptance or default of the debtor, the risk of accidental deterioration and accidental loss shall pass on to the Buyer. Item 6. remains unaffected.
6.	Delivery, passing of the risk, shipping and packaging
6.1.	Unless agreed otherwise in the written agreement between MAINCOR and the Buyer, a delivery “ex works” is agreed upon. The Goods shall be sent to another place of destination at the Buyer’s request and expense. The type of shipment and the transport route are at MAINCOR’s own discretion excluding any liability unless there are specific instructions. Loading and shipment are made uninsured at the Buyer’s risk. MAINCOR endeavors to consider the Buyer’s requests and interest concerning type of shipment and transport route; the additional cost incurred by this is charged to the Buyer even in case of an agreed delivery free of charge. On request and at expense of the Buyer, MAINCOR will cover the delivery with a cargo insurance. However, MAINCOR does not accept responsibility for the insurance’s execution.
6.2.	The risk of accidental loss and accidental deterioration of the Goods shall pass on to the Buyer at the latest upon delivery; item 6.1. shall remain unaffected. In the case of shipping of the Goods, the risk of accidental loss and accidental deterioration as well as the risk of delay shall pass on to the Buyer upon handing over of the Goods to a forwarding agent or carrier or another third party charged with execution of the shipping. If an acceptance is agreed, this shall be authoritative for passing of the risk. For the rest, the legal provisions of the law applicable to works and services apply accordingly to an agreed acceptance. The Buyer’s delay in acceptance shall be deemed delivery or acceptance.
6.3.	If the Buyer is in delay with acceptance or refrains an act of cooperation or if the delivery is delayed for other reasons the Buyer is responsible for, MAINCOR shall be entitled to demand compensation of the resulting damage including additional expenses (e.g. storage costs). If no exact delivery date was agreed, the same applies after communication of the readiness for shipment by MAINCOR. The lump-sum compensation for every commenced month amounts to 0.5% of the value or price of the delivery item, however at most to 5% of the value or price of the delivery item. The proof of a higher prejudice of MAINCOR and the assertion of further legal claims by MAINCOR (including but not limited to compensation of additional expenses, reasonable compensation and termination) shall remain unaffected; however the lump sum shall be credited against further claims to money. The Buyer is allowed to prove that MAINCOR has not suffered a loss or that the loss was essentially lower.
6.4.	The kind of packaging is at MAINCOR’s own discretion unless there is a specific agreement. MAINCOR shall invoice the packaging at cost price. MAINCOR does not take back any transport and other packaging, according to the packaging regulation. This does not apply to pallets. The Buyer shall arrange for disposal of the packaging at its own expense.
7.	Warranty
7.1.	MAINCOR shall in general only have an obligation of warranty according to the conditions mentioned below if the Buyer observes MAINCOR’s parameters stated in item 2 when using the services provided by MAINCOR.
7.2.	The Buyer shall not be entitled to claims for defects in case of insignificant deviation of the delivered Goods from the agreed condition, an insignificant impairment of usability, in the case of natural wear and tear, excessive wear, in the case of use of inappropriate or other equipment which does not meet the specifications or in the case of defects caused by special outside influences which were not assumed in the contract and in the case of quantity variance customary to the trade. The obligation of warranty also lapses if the Goods are changed inexpertly by the Buyer or a third party or by installation of non-proprietary parts unless the defect is not causally connected with those measures. Furthermore, the obligation of warranty lapses in the case of inexpert installation or maintenance by the Buyer or a third party as well as in the case of non-compliance with operation and maintenance manuals, provisions for use, handling and installation and in the case of a faulty selection of shipping and packaging if it is made due to the instructions of the Buyer. Apart from that, claims for defects according to the conditions stated below only exist if the Buyer has duly observed its legally owed obligations to examine and notify.
7.3.	If there is a defect of the Goods MAINCOR is obliged to execute a supplementary performance excluding the Buyer’s rights to withdraw from the contract or to reduce the purchase price (abatement) unless MAINCOR is entitled to refuse supplementary performance due to legal provisions. The Buyer shall set MAINCOR a reasonable term for supplementary performance.
7.4.	The supplementary performance may be made by removal of the defect (subsequent improvement) or by replacement delivery at MAINCOR’s discretion; a supplementary performance within this meaning shall only be considered as failed after two unsuccessful attempts. MAINCOR shall bear all expenses necessary for removal of defects, including but not limited to transport, road, work and material costs, unless those have been incurred by bringing the Goods to another place than the place of performance. If a Buyer’s claim for removal of a defect turns out to be unjustified, MAINCOR may claim the resulting costs from the Buyer.
7.5.	If the supplementary performance fails or MAINCOR is not ready or able to perform a supplementary performance or replacement delivery or it is delayed by more than a reasonable period for reasons MAINCOR may be held responsible for, the Buyer is entitled to withdraw from the contract or to demand a reduction of the purchase price (abatement).
7.6.	Legal rights of recourse of the Buyer against MAINCOR shall only exist if the Buyer has not concluded any agreement exceeding the legal claims based on defects with its contractual partners. Item 7.4. applies accordingly.
8.	Liability and compensation
8.1.	MAINCOR’s liability for compensation, for whatever legal reason, including but not limited to delay, impossibility, defective or wrong delivery, infringement of the contract, infringement of obligations during contractual obligations and tort shall be limited according to the provisions of item 8 as far as a fault is concerned.
8.2.	MAINCOR shall not be liable a.) in the event of simple negligence of the bodies, legal representatives and executives of MAINCOR; b.) in the event of gross negligence of non-executive employees and simple vicarious agents of MAINCOR, unless material obligations of the contract are breached. Material obligations include the obligation for delivery in due time which is free of defects as well as consulting, protection and custodial duties that are intended to enable the Buyer to use the Goods as agreed upon or to safeguard the health and life of employees of the Buyer or third parties or the property of the Buyer against significant damage.
8.3.	If MAINCOR is liable for damages on the merits in accordance with section 8.2., such liability is limited to damage that MAINCOR foresaw upon the execution of the contract as a possible consequence of a breach of contract or should have foreseen when taking into account the circumstances that were known to MAINCOR or that MAINCOR should have identified by applying customary diligence. Furthermore, indirect and consequential damage which results from defects of the delivery item must only be reimbursed if such damage must typically be expected in relation with the intended use of the Goods.
8.4.	The aforementioned exclusions of and restrictions on liability shall apply to the same extent for the benefit of the bodies, legal representatives, employees and other vicarious agents of MAINCOR.
8.5.	For the remainder MAINCOR’s liability is limited, if legally admissible, to the scope MAINCOR’s covered third party liability insurance acknowledges and reimburses.
8.6.	If MAINCOR provides technical information or consulting services and such information or consulting is not included in the scope of services owed by MAINCOR under the contract, such information or consulting is provided free of charge and without any liability.
8.7.	The limitations in accordance with sections 8.1. to 8.5. do not apply to MAINCOR’s liability for willful conduct or gross negligence, including gross negligence of its bodies, legal representatives and executives, for guaranteed properties, for injuries to life, body or health or under the product liability act.
9.	Statute of limitations
9.1.	The limitation period for claims and rights due to defects of the service - for whatever legal ground - shall be 1 year. However, this does not apply in the cases of section 438 subsection 1 (1) German Civil Code [BGB] (defects of title in case of immovable objects), section 438 subsection 1 (2) German Civil Code (buildings, items for buildings), section 479 subsection 1 German Civil Code (claim to recourse of the contractor) or section 634 a subsection 1 (2) German Civil Code (buildings or works of which the success consists of performance of planning or surveillance for them). The periods given in the aforementioned sentence 2 are subject to a period of limitation of 3 years.
9.2.	The periods of limitation according to item 9.1. also apply to any and all claims for compensation towards MAINCOR in connection with a defect, regardless of the claim’s legal basis. If there are claims for compensation of any kind towards MAINCOR that in turn are not connected with a defect the period of limitation of clause 9.1. applies to them as well.
9.3.	The periods of limitation of item 9.1. and 9.2. apply with the following requirements: the periods of limitation generally do not apply in the case of willful intent; the periods of limitation also do not apply when MAINCOR has concealed the defect fraudulently or granted a warranty for the service’s condition. If MAINCOR concealed a defect fraudulently the legal periods of limitation apply instead of the periods given in clause 9.1.; the periods of limitation also do not apply for claims for compensation in the case of injury to life, body and health, in the case of claims according to the Product Liability Act, in the case of a grossly negligent breach of obligation or in the case of a breach of significant contractual duties.
10.	Reservation of title
10.1.	The Goods delivered by MAINCOR are subject to a prolonged reservation of title (reserved goods). MAINCOR reserves the title to the Goods, as far as legally permissible, until all receivables including all balance claims of the current account to which MAINCOR is entitled now or in the future with regard to the Buyer are settled.
10.2.	The Buyer shall handle the reserved goods carefully and adequately insure them at their own expense at purchase value against fire, water and theft damages.
10.3.	In the case of behavior of the Buyer contrary to contract, including but not limited to default of payment, MAINCOR is entitled to take back the reserved goods after reminder and the Buyer shall be obliged to return the reserved goods.
10.4.	The assertion of the reservation of title, the withdrawal of the Goods and the garnishment of the contractual service by MAINCOR shall be considered as the rescission of the contract unless otherwise expressly stated by MAINCOR in writing.
10.5.	The processing or the alteration of the contractual services by the Buyer shall always be carried out for MAINCOR. If the contractual services are processed with other objects not belonging to MAINCOR, MAINCOR gains the co-ownership of the new object in relation to the value of their objects with regard to the other processed objects at the time of processing. The Buyer shall store the jointly owned item for MAINCOR.
10.6.	If the contractual service is mixed inseparably with other objects not belonging to MAINCOR, MAINCOR gains the co-ownership of the new object in relation to the value of their contractual service with regard to the other objects inseparably mixed at the time of processing. The Buyer shall also store the jointly owned item for MAINCOR in this event.
10.7.	The Buyer must neither pledge nor assign by way of security the contractual service. In the event of garnishment, destruction, confiscation or other disposals by third parties, the Buyer shall inform MAINCOR immediately and shall provide MAINCOR with all information and documents required for safeguarding MAINCOR’s rights. Executory officers or third parties (as the case may be) shall be made aware of MAINCOR’s ownership.
10.8.	The Buyer is entitled to duly sell or use the reserved goods in the normal course of business as long as they are not in delay of payment. In order to cover the purchase money debt during the reservation of title, the Buyer cedes to MAINCOR any possible receivables (including the turnover tax at the legally applicable rate) from the resale of the reserved goods or due to another legal ground (insurance, tort) with regard to the reserved goods. The cession by way of security shall be made to the full extent. MAINCOR hereby accepts the cession. The cession shall also extend, if the Buyer has a current account relationship with the subsequent purchaser, to a positive balance of the Buyer in the current account relationship with the third party up to the amount of the claim to the purchase price. MAINCOR may withdraw the authorization for resale if a prohibition of cession of the Buyer’s claim with regard to its customers exists between the Buyer and its customers.
10.9.	The Buyer is revocably authorized to collect the receivables for MAINCOR’s invoices ceded to MAINCOR on its own behalf. The collection authorization can be withdrawn at any time if the Buyer does not duly meet its obligations to pay, if opening of insolvency proceedings is requested or if the Buyer terminates its payments. If the collection authorization is withdrawn by MAINCOR, the Buyer shall be obliged to inform MAINCOR of the ceded claim, to disclose the debtor (third party), to provide any other information required for collection, to hand over the related documents to MAINCOR and to inform the debtor (third party) of the cession for the benefit of MAINCOR.
11.	Industrial property rights
11.1.	MAINCOR is only liable for claims arising from the breach of industrial property rights if MAINCOR is responsible for the breach of industrial property rights and if the industrial property rights are not owned by the Buyer or an associated company in which the Buyer directly or indirectly holds a majority interest by means of a share or voting rights.
11.2.	A liability on MAINCOR’s part shall also be excluded if the Buyer does not notify MAINCOR immediately after becoming aware of a risk of breach and claimed breaches and leaves the conduct as well as the type of conduct of legal disputes to MAINCOR’s discretion.
11.3.	Furthermore, possible claims of the Buyer from the breach of industrial property rights are excluded if the breaches are caused by instructions (e.g. drawings, models or similar descriptions and directions) of the Buyer or are resulting from changes to the Goods made by the Buyer or from the use in combination with another item not received from MAINCOR. The same applies if the Goods are used in a way not foreseeable for MAINCOR at contract conclusion.
11.4.	In the case that there are breaches of industrial property rights, MAINCOR is entitled to purchase a license for these Goods in favor of the Buyer or to modify the object of contract or to replace it by similar Goods so that the breach is removed and the purpose given in the contract is ensured.
11.5.	For the remainder, item 7. in connection with items 8. and 9. shall apply conclusively for claims for damages.
12.	Confidentiality, data protection and fiduciary duty
12.1.	The contractual parties undertake to mutually behave in a loyal way. In particular, they must not entice away individual employees of the other contractual partner.
12.2.	The contractual partners undertake to keep strictly confidential any data and information of the other contractual partner which became known to them directly or indirectly within the framework of the contract, whether oral, written or in any other way and to only use them for the purpose of this contract, even after the contract’s termination. This shall also apply to data and information which were not identified or transferred as being confidential, as far as these data and information are considered to be confidential. This shall not apply if the data and information were already disclosed and open to third parties or if this data and information are transferred by a third party which is not subject to confidentiality or if this data and information imperatively have to be communicated due to a law and if this data and information is disclosed to the lawyers and auditors of the respective contractual partner for the purpose of counseling.
12.3.	The contractual partners shall ensure that all employees or third parties who are charged with performance of the contractual obligations are also subject to this obligation to observe secrecy.
12.4.	The contractual partners waive assertion of any claims for damages which result from the fact that unauthorized third parties obtain access to the respective data and information of the contractual partner in an illegal way. This does not apply if the access became possible due to a breach of duty of the contractual partner.
12.5.	Statutory provisions, especially provisions regarding data protection, shall remain unaffected.
12.6.	If a party provides the other party with drawings, technical documentation or other technical information on the Goods before or after conclusion of the contract, these remain the property of the providing party. Without the consent of the providing party, these shall only be used for the intended purpose. Without the consent of the providing party, they must not be used, copied, reproduced, passed on to third parties or disclosed for other purposes.
13.	Other provisions
13.1.	The Buyer shall ensure that the use of the Goods by them or by their contractual partners does not lead to a breach of any provisions under public law or any other compulsory statutory provisions. If and as far as a behavior of the Buyer which is contrary to the contract leads to claims against MAINCOR, the Buyer shall indemnify MAINCOR against these claims. If claims are asserted which result from a behavior contrary to the contract, MAINCOR is entitled to prohibit the use of contractual services by the Buyer until the issue is settled conclusively.
13.2.	The transfer of rights and obligations resulting from this contract by the Buyer to third parties requires the prior written consent of MAINCOR. This shall especially apply to the entitlement to delivery of the Buyer.
13.3.	If unforeseeable circumstances within the meaning of items 5.4. or 5.5. essentially change the economic meaning of the contract concluded with the Buyer or have an essential influence on MAINCOR’s operation, the contract concluded with the Buyer shall be adapted in good faith to the changed circumstances taking into account the interests of both parties. If a settlement cannot be reached, MAINCOR may withdraw from the contract according to item 5. This shall also apply if an extension of the delivery period was firstly agreed upon by MAINCOR and the Buyer. The Buyer shall be informed immediately of the withdrawal.
13.4.	The contract based on these GTC is exclusively governed by the law of the Federal Republic of Germany. The place of jurisdiction is the domicile of MAINCOR unless the Buyer is a corporate body under public law or a special fund under public law. The place of jurisdiction shall also apply to tortious claims. MAINCOR may also file a complaint against the Buyer at the Buyer’s domicile.
13.5.	Any amendments and supplements to the contract based on these GTC and to these GTC themselves must be made in writing. This also applies to this provision on the written form.
13.6.	The Buyer is informed according to the provisions of the German Data Protection Act that their data are saved and processed by means of electronic data processing for performance of the business relationship.
13.7.	If any provisions are or become ineffective, this does not affect the effectiveness of the remaining provisions. The ineffective provision will be deemed replaced from the beginning with an effective one of which the meaning and purpose and the letter correspond or come close to the ineffective provision. In the case of gaps, a provision is deemed agreed upon from the beginning that reflects what the parties reasonably would have agreed upon according to the meaning and purpose of these GTC if they had considered such gap. Unless otherwise provided in the confirmation of the order, the seat of MAINCOR shall be the place of performance.