General Terms and Conditions of NOTAVIS GmbH

1. General

1.1 Die nachfolgenden Bedingungen gelten für alle Lieferungen, Reparaturen und sonstigen Leistungen der NOTAVIS GmbH. Sie gelten auch für alle zukünftigen Geschäfte, selbst wenn nicht gesondert auf sie Bezug genommen wird. Etwaige Einkaufsbedingungen oder sonstige allgemeine Geschäftsbedingungen des Kunden erkennt die NOTAVIS GmbH nicht an, es sei denn, ihrer Geltung wird von der NOTAVIS GmbH schriftlich zugestimmt. 1.2 Änderungen und Ergänzungen des Vertrages bedürfen – soweit nichts anderes schriftlich vereinbart ist – der Schriftform.

2. Offer, Confirmation of Order, Contract

2.1 Offers are confidential and not open to third parties. Ownership and copyright of offers and related documents, records etc. belongs to NOTAVIS. Offer-documents, records etc. have to be returned on demand.

2.2 Offers are subject to change without notice and are not binding unless agreement to different conditions in writing is made. Offers may be revoked until confirmation of order is made. A contract only comes into existence with our written confirmation of the order. Our invoice is to be regarded as confirmation of the order if the order is carried out immediately. If delivery takes place before the buyer has received confirmation of the order, the contract comes into existence under these GTC upon delivery.

2.3 Changes to the GTC can only be made in writing. Verbal, subsidiary agreements are only binding if confirmed by NOTAVIS in writing; this includes contracting out agreements in written form.

2.4 Drawings, pictures, measurements, values or other data, especially performance data, made or shown in our brochures or in general information are only binding if strictly agreed to in writing.
Information supplied on our Internet pages is in compliance with the aforementioned terms.

2.5 Technical and other changes of subject matter of contract, which do not essentially influence the value of a product in a negative way, are permitted. Permission is hereby especially given for changes which lead to a technical improvement.

2.6 If the buyer, contrary to the terms of the agreement or law, withdraws from or terminates the contract or does not comply with our request of fulfilment of terms of taking delivery within the stated period, we have the right to claim for a consolidated lump sum of 30% of the value of the contract or part of contract not fulfilled as compensation for non-performance, without losing the right to claim higher damages taking account of the payment of the compensation for this debt.

2.7 The customer is liable to pay the costs of developments to be made. Developments are under no guarantee of realization. In case of unforeseen or non-profitable additional costs of realization, we claim the right to supply partly or fully alternative solutions and developments as well as to terminate the whole development or contract. The ordering party’s right to claim damages for whatever reason in this case is excluded as far as legally possible.

2.8 Our hardware is occasionally delivered with test-software. This software is delivered or used with exclusion of any seller’s or developer’s guarantee for the sole purpose of testing. Guarantee of further development of this test-software, parts of it or for its use is excluded as well as a guarantee for information or further particulars given for this by our employees unless we have agreed to a software-development and/or support agreement with our customer in return for payment.

3. Delivery, Forwarding, Passing of Responsibility

3.1 Without any guarantee we will try to keep to the agreed delivery time. Delivery time is fulfilled if contractual goods have left our storage or readiness of dispatch is announced to the buyer. Buyer's claims for delay or deliveries not having taken place are excluded, as long as we have not acted intentionally or are seriously at fault ("willful or negligent"). Observance of delivery times demands fulfilment of buyer's contractual obligations in total.

3.2 Deliveries are made in the order in which the order is received and within the scope of the customer's respective credit amount. In the case of overdue invoices, delivery cannot be made until the total invoice amount has been settled. NOTAVIS GmbH is not liable for delays in delivery due to force majeure, operational or transportation delays.

3.3 We reserve the right of partial delivery. Choice of mode of transport is the customer’s responsibility. Delivery is ex factory, Karlsruhe.

3.4 We have the right, but no obligation, to insure the goods at the expense of our customer.

3.5 The sender must be informed about damage or loss of goods in transport immediately. Proof of damage has to be secured by the customer.

3.6 Responsibility for the goods passes to the buyer as soon as we have passed the goods to a forwarding company or the goods have left our factory for dispatch.

4. Price and Payment

4.1 Our prices are free stock Karlsruhe. They do not include installation, training or other performance of additional services, actual German value added tax, costs of forwarding, packing and packing return costs.

4.2 Payments become due 30 days after invoice is dated with a discount of 2% for payments within 8 days upon invoice date, unless agreed differently. The date payment becomes due and method of payment is, for both parties binding, printed on the confirmation and/or invoice.

4.3 Bills of exchange will only be accepted if agreed to before.

4.4 Payments by cheque, bills of exchange or remittance result in fulfilment of payment as soon as our account is credited irrevocably. Commercial buyers have no right of retention.

4.5 Offsetting against counter-claims is excluded as long as counter demands or claims are not finally legally settled or recognized by us. The aforementioned is agreed to for any retention the buyer claims.

4.6 We reserve the right to change prices at any time.

4.7 In case of delay in payment we reserve the right to claim, without any further substantiation, interest upon defaults in payment to the sum of 5% above the base interest rate ( according to §247 German Civil Code); while we reserve the right to claim for proven higher damages.

4.8 In case of delay of payment or in case of other circumstances which have influence on the creditworthiness of the customer (especially in the case of menacing insolvency), all outstanding payments of the customer become due. We have the right to make further deliveries only after payment in advance or to terminate the contract in such a case. The customer is obliged to inform us about such circumstances immediately.

5. Reservation of ownership

5.1 All delivered goods remain our property until settlement of existing invoices, current account credits or other requirements, whatever cause in law they have. The customer will take this into account in respect of storage and any possible security agreements.

5.2 Changes or transformations to goods with reserved ownership are always made for us as manufacturer, without any further obligation for us. It is agreed herewith that we will gain part ownership in relation to the total of our invoice, if reservation of ownership extinguishes for whatever reason, except payment, especially due to combination with other goods or mixture of things.

5.3 Reservation of ownership does not exclude the buyer's right to manufacture, transform or sell goods in the ordinary cause of business as long as the buyer is not in default. Pledging is, as far as legally possible, excluded for all goods under reservation of our ownership. Buyer agrees to assign to us all claims in respect of resold goods or for other reasons (e.g. insurance / tortuous act) as long our goods are under reservation of ownership. We authorize the buyer, revocable at any time, to call in all claims under reservation of our ownership for his own account. The call-in right for buyer's account may be revoked if the buyer does not fulfil his obligations to pay. Buyer is bound to inform us about all circumstances which endanger his solvency immediately.

5.4 Buyer will inform third party about our ownership and inform us immediately if any third party tries to gain or claim rights on goods under reservation of our ownership. We have the right to reclaim our goods still under reservation of ownership in such a case as well as in case of buyers delay in payment. Reclamation of goods does not necessarily mean withdrawal from the contract(s) unless explicitly expressed in written form.

5.5 We have the right to charge for loss of value or usage and costs of retransfer in such a case.

6. Guarantee, Defect Reports

6.1 Starting with passing of the responsibility there is an implied guarantee on the functionality of our goods excluding cables for a period of 24 months (1 month for cables) unless confirmed to be different in writing. Damages resulting in improper handling are excluded from any guarantee. Defects must be reported within two weeks after delivery. The report must contain a detailed description of the defect. In the same way, defects must be reported before goods are resold, combined with other goods or installation takes place. A neglecting of the duty to report defects leads, as far as legally possible, to loss of guarantee.

6.2 Reasonable guarantee claims will be fulfilled, according to our choice, by subsequent improvement or delivery of substitutes after issuance of a RMA number from our side. The customer must allow an adequate period for fulfilment.

6.3 In case of reasonable guarantee claims we will bear costs of improvement or delivery of substitutes arising in our factory. In case of absence of reasonable guarantee claims, the buyer has to bear our costs.

6.4 Guarantee claims do not give any right to the customer to withhold payment of invoices. Subsequent improvement does not hinder or interrupt expiry of guarantee.

6.5 Customer’s or third party’s changes or repair of our products, or the misuse, modification, abuse, improper installation of or accident to our products, hardware and/or firmware, lead to complete exclusion of our liability. Such measures will result in immediate expiry of the guarantee.

6.6 We shall in no event be liable for any loss or damage direct, incidental or consequential, arising out of the sales of products by customer or third parties.

6.7 No guarantee claims may be reassigned to third parties.

Liability, Compensation

7.1 The market price of each of our products determines the maximum limit of our related liability. Further claims, especially claims on consequential damage or loss, are strictly excluded.

7.2 If the customer is a reseller, they are entitled to sell in the ordinary course of business as long as they are not in default. The claims arising from the resale or any other legal basis (insurance, tort) regarding the goods under retention of title are hereby assigned to us in full as a security measure, regardless of whether the goods under retention of title have been resold without or after processing. The customer is authorized to collect the claims assigned to us on their own account in their own name, as long as this authorization to collect is not revoked by us. NOTAVIS GmbH is entitled to revoke the collection authorization if the customer falls into payment default, stops payments, or files for bankruptcy proceedings.

7.3 Insofar as the realizable value of the assigned claims exceeds the liabilities of NOTAVIS GmbH by more than 20%, NOTAVIS GmbH will release the corresponding excess part of the securities at the request of the customer.

7.4 In the event of any processing, NOTAVIS GmbH remains the manufacturer in the sense of § 950 BGB (German Civil Code), and the customer stores with commercial diligence for us

7.5 In case of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can file a lawsuit according to § 771 ZPO (German Code of Civil Procedure). If the third party is unable to reimburse us for the judicial and extrajudicial costs of a lawsuit according to § 771 ZPO, the customer is liable for the loss incurred by us.

8. Repair

8.1 An estimate of repair costs will only be made if expressively asked for. Compensation for resulting costs is to be made. Repair cannot be executed or will be done without any warranty as long as we do not have notice of the defect. Customer has to describe the defect and has to ask for a RMA number to be issued before sending the goods In the case, that we cannot establish any defect, we will charge a repair and testing fee of 50,00€ and the product will be returned to the customer with postage unpaid. Our current terms of repair are to be observed.

8.2 Delivery of repaired goods will only take place after immediate payment.

8.3 Products sent in for repair, improvement or change must be delivered at the sender's cost. Products sent in with unpaid postage and without valid RMA number will not be accepted.

8.4 If the subsequent performance fails, the customer is entitled to demand either withdrawal or reduction, at their discretion.

8.5 If the use of the delivered item leads to the infringement of industrial property rights in the domestic country, NOTAVIS GmbH will, in principle, obtain the right for the customer to continue using the item at its own expense. If this is economically disproportionate, the customer has the right to withdraw from the contract.

8.6 Liability for culpable injury to life, body, or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.

8.7 The limitation period for claims due to defects is 24 months, starting from the transfer of risk. Refer to paragraph 9.1.

9. Final settlements

9.1 NOTAVIS GmbH products are not designed, authorized, or warranted for use in life support devices or systems, or any other critical application that may involve death, injury, property or environmental damages. Using NOTAVIS’s products for any critical application is fully at the risk of the customer and their end users and assigns.

9.2 If one or more provisions of this agreement should be or become invalid or unenforceable, the balance of the agreement shall remain unaffected thereby and remain in full force and effect. In this event, the parties shall substitute the invalid or unenforceable provision by a valid legal one which achieves the legal purpose of the invalid or unenforceable provision as closely as possible.

9.3 The current versions of our GTC and list of prices are authoritative. If new versions come into effect, they will be assumed to replace older versions for all current and future contracts without the necessity of informing customers as far as legally possible. Changes and amendments of this GTC by the customer are only binding if agreed to by both parties in writing.

10. data protection, data storage

According to § 33 BDSG, NOTAVIS GmbH points out that it saves personal data related to the business relationship. Processing is carried out in compliance with the Federal Data Protection Act.

11. Applicable law, place of performance and jurisdiction

11.1 The law of the Federal Republic of Germany shall apply. The applicability of the CISG (UN Convention on Contracts for the International Sale of Goods) is expressly excluded.

11.2 The place of performance for all obligations arising from the contractual relationship is Ettlingen.

11.3 The place of jurisdiction for all disputes arising from the contractual relationship and its initiation and execution is Karlsruhe, provided the customer is a merchant or has no general place of jurisdiction in Germany. The statutory place of jurisdiction shall also apply in the case of actions on checks and bills of exchange.

Release: July 2007