General Terms and Conditions of Business of Bartels Mikrotechnik GmbH

I. General

1. The following General Terms and Conditions of Business shall apply to all offers and contracts for the sale and/or delivery of goods and/or the provision of services by Bartels Mikrotechnik GmbH, including those involving consultancy, installation, and other contractual services. No deviations from these General Terms nor any ancillary oral agreements or assurances shall have any validity unless confirmed in writing by Bartels Mikrotechnik GmbH.
2. The counterparty’s terms of business shall have no validity even if they have not been specif-ically rejected. 

II. Offers and creation of contracts

1. The duration of the binding effect of offers made by Bartels Mikrotechnik GmbH shall be based exclusively on the length of time stated in the offer. If no such length of time is stated in the offer, the offer shall always be deemed to be free and non-binding. If the customer requires any goods or services that differ from those stated in the offer, their provision shall subject to express written confirmation from Bartels Mikrotechnik GmbH. Apart from this the offer shall describe the statement of task in accordance with the requirements of the in-dividual case and with regard to the specific purpose of use, the content and extent of the work, the period of time for its completion, and the inspection, development, or production goal.

III. Prices, payments, due-date for payment, arrears

1. Prices shall usually be calculated individually for each case. Generally speaking the price will consist of a basic amount and an additional contribution to costs based on the nature of the work and the unit quantity. The basic amount shall take into account the costs of technical design, programming, masks, and any necessary jigs or tools. The unit costs shall mainly de-pend on the type of material, the desired geometry, the total material quantity in particular that is to be unloaded, the required tolerances, and the required quality assurance activities. The basis for the calculation shall be the availability of an exactly known design and of the materials requirements. Should it not emerge until after the contract has been created that any of these requirements have been changed, or that an error has occurred in the calcula-tion through no fault of Bartels Mikrotechnik GmbH, Bartels Mikrotechnik GmbH shall cease to be bound to the pricing that has been submitted. The necessary development work for producing the design and/or prototype(s) shall be calculated separately.
2. Unless anything to the contrary has been agreed, prices shall be defined as ex-works Bartels Mikrotechnik GmbH. The currently applicable statutory Value Added Tax shall be added. The customer shall bear any bank charges, particularly if payment is being made from outside Germany, and the payment amount shall be increased accordingly.
3. Payment shall be made net within 14 days of the date of invoice directly to the bank account of Bartels Mikrotechnik GmbH.
4. Advance payment instalments can be requested in any individual instance.
5. If the services that Bartels Mikrotechnik GmbH is to provide cover a period of more than 30 calendar days, Bartels Mikrotechnik GmbH shall be entitled to submit monthly instalment in-voices. Such invoices shall be permissible up to the level of 90 percent of the services so far rendered and shall fall due for payment net of any deductions within 14 days of the date of invoice. If any work is ready for final inspection and acceptance, Bartels Mikrotechnik GmbH shall be entitled to invoice 100 percent of the work that has been accepted.
6. In the event of the customer failing to meet the payment date, interest shall be due at a rate 8 percentage points above the basic rate of interest at the material time. Bartels Mikrotech-nik GmbH reserves the right to demonstrate that it has suffered a greater loss.
7. Bartels Mikrotechnik GmbH’s counterparty shall have no right of retention or offset unless the counterclaims are undisputed or have been established by a court of law.
8. In the event of the counterparty falling into arrears, or of the receivable account being en-dangered by a deterioration in his creditworthiness, Bartels Mikrotechnik GmbH shall be enti-tled to call in the receivable account regardless of the term to maturity of any bills-of-exchange or agreed payment terms. The possibility will then also exist of carrying out any still outstanding deliveries or work only against payment in advance or the provision of collateral.

IV. Reservation of title

1. Goods that have been delivered and work that has been performed and its result shall re-main the property of Bartels Mikrotechnik GmbH (as “reserved goods”) until all outstanding claims to payment have been settled, meaning also and in particular the balance on the ac-count to which Bartels Mikrotechnik GmbH is entitled against the customer under the busi-ness relationship between them.
2. Reserved goods shall be treated and processed on behalf of Bartels Mikrotechnik GmbH as the manufacturer within the meaning of Article 950 of the Code of Civil Law, but without Bar-tels Mikrotechnik GmbH thereby being placed under any obligation. The goods that have been processed shall still be deemed to be reserved goods. If the customer processes, com-bines, and/or mixes the reserved goods with other goods, Bartels Mikrotechnik GmbH shall acquire co-ownership of the new object in the same proportion as the invoice value of the reserved goods to the invoice value of the other goods used. If Bartels Mikrotechnik GmbH’s title to the goods is extinguished through their being combined or mixed, the customer shall be deemed to have assigned to Bartels Mikrotechnik GmbH, at the moment at which the contract comes into being, the rights of ownership to which it is entitled over the new stock or new object to the extent of the invoice value of the reserved goods. The customer shall then store the goods free of charge on Bartels Mikrotechnik GmbH’s behalf.
3. The customer shall be free to resell the retained goods only in the course of his normal busi-ness transactions and on his normal terms of business, and only so long as he is not in arrears of payment, provided always that he makes a reservation of title agreement with his cus-tomer and that his claims to payment from the resale are transferred to Bartels Mikrotechnik GmbH. He shall not be entitled to dispose of the reserved goods in any other way.
4. The use of the reserved goods for the fulfilment of contracts for goods or for services shall also be regarded as resale.
5. Masks and other tools or jigs produced by Bartels Mikrotechnik GmbH shall remain the prop-erty of Bartels Mikrotechnik GmbH. If the sizes of the masks so permit, the parties shall be free to agree on a 2-year obligation of storage.

V. Final inspection and acceptance

If at the time when the order is placed it is envisaged that the counterparty is to inspect the goods or work prior to acceptance, this shall be done without delay after Bartels Mikrotechnik GmbH an-nounces that the work is ready for inspection and acceptance. If no inspection has taken place within one month, and the counterparty has stated no adequate hindrances for the delay, the goods or work shall be deemed to have been accepted.

VI. Bartels Mikrotechnik GmbH’s liability in the event of the violation of third parties’ protective rights.

1. The customer shall be under an obligation to request Bartels Mikrotechnik GmbH, at his ex-pense, to conduct a patents search to ensure that no third party’s industrial property rights are being violated. If the customer refuses to authorise any such patents search, and does not request one, Bartels Mikrotechnik GmbH shall bear no liability with respect to the viola-tion of any third-party’s protective rights.
2. The following shall also apply: Bartels Mikrotechnik GmbH shall bear no liability of any kind with respect to the violation of any third party’s protective rights if the violation only arises through a modification to the goods by the customer. Bartels Mikrotechnik GmbH shall be under no obligation to draw the customer’s special attention to the possibility of a violation of such rights as a result of the modification. Should any third party raise claims against the customer on the grounds of the violation of industrial property rights or copyright (referred to hereinafter as “protective rights”), by any products that Bartels Mikrotechnik GmbH has delivered or work that it has done, and if the use of the products is thus affected or prohibit-ed, Bartels Mikrotechnik GmbH at its free discretion and at its own expense shall either mod-ify or replace the products in such a way that the protective right is no longer violated, but so that the product nevertheless basically meets the agreed specification, or else shall indemni-fy the customer for licence fees payable to the third party for the use of the products. If it is not possible for Bartels Mikrotechnik GmbH to take these actions on any appropriate terms, it shall take the product back and repay any remuneration already paid. Bartels Mikrotechnik GmbH shall be entitled to require compensation from the customer for such value as he may have derived from the product.
3. If the customer uses any product from Bartels Mikrotechnik GmbH in any area that Bartels Mikrotechnik GmbH would have been unable to foresee or in any way that leads to damage to the product or the violation of any third party’s protective rights, Bartels Mikrotechnik GmbH shall bear no liability of any kind.
4. The prerequisite requirement for Bartels Mikrotechnik GmbH’s liability as set out in sub-clause VI.1 shall be that the customer informs Bartels Mikrotechnik GmbH without delay and in writing of any claims raised by third parties on the grounds of a violation of protective rights, does not acknowledge any validity in the alleged violation, and does not conduct any discussions nor any out-of-court settlement except in close agreement with Bartels Mikro-technik GmbH. Should the customer cease to use the product in order to minimise the po-tential loss, or for any other serious reason, he shall be under an obligation to inform the third party that no such cessation of use shall be construed as an acknowledgement of the violation of the protective rights.
5. If the customer himself is responsible for the violation of the protective rights, no claim shall be raised against Bartels Mikrotechnik GmbH under the provisions of sub-clause VI.1. The same shall apply if the violation has been caused by the customer’s specification, by use hav-ing been made of the product that Bartels Mikrotechnik GmbH could not have foreseen, or by the customer have altered the product or used it together with products not supplied by Bartels Mikrotechnik GmbH.
6. The customer shall raise no further claims on the grounds of a violation of a third party’s pro-tective rights. The customer’s right to cancel the contract, however, shall remain unaffected so long as he is prevented from using the product on account of the countervailing rights of the third party.

VII. Guarantee

1. Bartels Mikrotechnik GmbH guarantees that in all its work it applies scientific care and ad-heres to the accepted rules and the latest state of technology, but not that it will achieve any research or development goal. Bartels Mikrotechnik GmbH shall carry out the agreed work on this basis and shall therefore bear no liability, over and above the foregoing, for materials, changes to materials through processing, the function of the parts, or any other properties of the product if it has been correctly and properly produced in accordance with the agreed specification. Should any product reveal defects in the form of deviations from the contrac-tually agreed specifications, the customer’s claims shall be limited to rectification of the de-fects or the delivery of new goods. Should the attempt at rectification or replacement prove fruitless, either party shall be free to cancel the contract. The customer shall also be free at his discretion to require a reduction in the agreed remuneration.
2. Any defects of the kind stated in sub-clause VII.1 shall be reported to Bartels Mikrotechnik GmbH without delay. If the customer has carried out a final inspection there shall be no com-plaints relating to defects of the kind that could have been found during the final inspection.
3. No rights based on defects, meaning in particular contractual or extra-contractual claims for compensation for losses not arising out of the product itself, that go beyond the foregoing shall be precluded to the extent defined in Clause VIII; this exclusion of liability shall not apply if assured properties are absent and if the purpose of the assured property was to protect the customer from the loss or damage that has occurred.
4. Bartels Mikrotechnik GmbH’s guarantee obligations towards registered traders shall be lim-ited to 6 months, and towards consumers to 24 months, from the date of hand-over of the product or of the results of the research and development work, to the exclusion of the United Nations Convention on contracts for the international sale of goods (CISG). The same shall also apply to guarantee claims that are not subject to the statutory guarantee periods.

VIII. Restrictions of liability.

Claims for damages based on arrears and all contractual claims for damages shall be limited to the value of the goods or services delivered.

Bartels Mikrotechnik GmbH’s liability shall be based exclusively on the agreements in the clauses set out above. Any rights not expressly granted therein, e.g. the right to cancel the contract, serve notice of termination, or convert it to one of lower value or for less quantity, or to damages of any kind and on any legal grounds whatever but particularly those relating to impossibility of fulfilment, unlawful action, positive violation of contract, and culpa in contrahendo, shall be excluded. This exclusion of liability shall not apply in any of the following circumstances:
– action with intent
– action in gross negligence by the legally authorised representatives or senior staff of ei-ther party
– culpable violation of essential contractual obligations if this jeopardises the attainment of the aim of the contract, but in this case liability shall be limited to compensation for such injury, loss, or damage as is typical for this kind of contract and could have been foreseen unless any of the foregoing circumstances apply
– claims under the Product Liability Act.
IX. Special agreements on research and development work.
1. Execution and completion of research and development work
a) The customer and Bartels Mikrotechnik GmbH, after discussion and agreement, shall provide each other punctually with the information necessary for the execution of the research and development work and with any necessary documentation, objects, and aids in a state suitable for the intended purpose, or else shall make them available for the duration of the work.
b) The objects and documentation that the customer supplies to Bartels Mikrotechnik GmbH shall be supplied on loan and returned to the customer when the contract has been fulfilled unless anything to the contrary has been agreed.
c) The results of the research and development work shall be made available to the cus-tomer at Bartels Mikrotechnik GmbH’s operational location unless anything to the contrary has been agreed.
2. Publications, advertising
a) The customer shall be entitled to publish the results of the project. He shall inform Bar-tels Mikrotechnik GmbH about his publications, if possible before they appear.
b) Bartels Mikrotechnik GmbH shall be entitled to publish basic scientific and technical statements that do not affect the customer’s interests.
c) The customer shall use the results for advertising purposes but shall not expressly men-tion Bartels Mikrotechnik GmbH without its permission.
d) Once a project has been successfully completed the customer shall be included in Bartels Mikrotechnik GmbH’s list of references.
3. Rights to research and development results
a) The research and development results shall be made available to the customer when the project has been completed in accordance with the description of task.
b) Unless anything to the contrary has been agreed the intellectual ownership of the re-search and development work and in particular the right to use it outside the specific project context, and all other industrial property rights and copyright that may be relevant, shall re-main vested in Bartels Mikrotechnik GmbH.
c) The customer can be granted a simple, non-exclusive right to use the inventions arising from the execution of the project with Bartels Mikrotechnik GmbH’s written consent. In this case the customer shall reimburse Bartels Mikrotechnik GmbH not only with the agree li-cence royalty but also for an appropriate share of the costs of applying for, maintaining, and defending the protective rights and any remuneration statutorily owed to employees for their inventions.
d) Neither partner shall derive any exclusive rights to any of the matters on which they col-laborate. Bartels Mikrotechnik GmbH shall be free to work on other projects with the same subject provided it adheres to the relevant confidentiality agreements.
X. Secrecy
Bartels Mikrotechnik GmbH and the customer shall make no information available to third parties that each receives from the other, whether of a technical or a business nature, and that has to be regarded as needing to be kept secret. This shall not apply to information that is available to the general public or if either Bartels Mikrotechnik GmbH or the customer has given a written waiver of the need to treat it as confidential. If a special confidentiality agreement should be necessary in individual cases the parties shall be free to enter into it. Die Bartels Mikrotechnik GmbH keeps a draft available of a mutual confidentiality agreement.
XI. Terms and conditions
Goods shall be supplied “EXW Dortmund” as defined in Incoterms 2000.
XII. Miscellaneous agreements
1. The place of execution for all contractual services shall be the place of business of Bartels Mikrotechnik GmbH.
2. In the event of any individual contractual provisions proving to be invalid, the remaining pro-visions shall retain their validity.
3. The place of jurisdiction for all legal disputes, including any proceedings relating to bills-of-exchange and cheques, shall be Dortmund.
4. The laws of the Federal Republic of Germany applicable to legal relationships between Ger-man contractual parties shall apply exclusively to all legal relationships between Bartels Mikrotechnik GmbH and the customer.