Conditions de vente

1. General Provisions

1.1. The following terms and conditions (hereinafter “General Terms and Conditions of Sale”) shall apply vis-à-vis merchants, legal entities under public law or a special fund under public law (“Purchaser”) to all deliveries and/or goods (hereinafter also referred to as “Deliveries”) of LOG INDUSTRIE GMBH (“LOG INDUSTRIE GMBH”).

1.2. The general terms and conditions of the Purchaser, as well as any terms and conditions on printed or electronic forms of the Purchaser, including, but not limited to, orders, confirmations or other documents, which contradict these General Terms and Conditions of Sale, in whole or in part, are hereby expressly rejected. The Purchaser’s complete acceptance of these General Terms and Conditions of Sale is implied whenever LOG INDUSTRIE GMBH accepts an offer or confirms an order submitted by the Purchaser. 

1.3. Partial deliveries of LOG INDUSTRIE GMBH are permitted if this is deemed reasonable to the Purchaser.

1.4. It is expressly stated and agreed that LOG INDUSTRIE GMBH, at its own discretion, may engage subcontractors and/or suppliers to fulfil its obligations under the contract.

 

2. Formation of the Contract

2.1. LOG INDUSTRIE GMBH’s offers are non-binding and represent an invitation to the Purchaser to place an order with LOG INDUSTRIE GMBH.

2.2. An order placed by the Purchaser represents a binding offer, which LOG INDUSTRIE GMBH can accept by written order confirmation within four weeks of receipt. The contract shall come into force upon receipt by the Purchaser of such confirmation.

2.3. The nature and scope of the deliveries to be provided by LOG INDUSTRIE GMBH, e.g. the works to be produced and/or the goods to be delivered and/or the services to be performed, are determined based on the order confirmation and any associated technical specifications.

2.4. In the case of an offer expressly indicated as binding by LOG INDUSTRIE GMBH, the contract shall come into force upon receipt by LOG INDUSTRIE GMBH of the Purchaser's written acceptance of the offer. Contradictory, additional or deviating conditions in the order acceptance of the Purchaser shall under no circumstances be binding for LOG INDUSTRIE GMBH.

2.5. Unless stipulated otherwise, the INCOTERMS 2010, including any amendments that are effective at the time of the formation of the contract, shall apply with regard to the interpretation of customary trade terms. The Purchaser knows and is in possession of the current valid version of the INCOTERMS 2010 and therefore the Parties do not consider it necessary to attach the INCOTERMS to these General Terms and Conditions of Sale.

 

3. Scope of Contract

3.1. The content, quantities, specifications, delivery periods and prices of the Deliveries are set forth in LOG INDUSTRIE GMBH’s order confirmation or binding offer. In absence of any specific requirements, the Deliveries shall adhere to the specifications generally applicable to similar goods or services provided by LOG INDUSTRIE GMBH.

3.2. Any documentation provided or made available by LOG INDUSTRIE GMBH to the Purchaser prior to the formation of the contract, such as drawings, sketches, indications of weight or dimensions, calculations, etc., shall not become part of the contract unless expressly included in the contract by LOG INDUSTRIE GMBH in the order confirmation/binding offer.

3.3. LOG INDUSTRIE GMBH reserves the right to change the technical concept on which the Deliveries are based even after the formation of the contract, provided that this does not negatively affect the contractually agreed quality and specification of the Deliveries, there is a valid reason for such a change and the change is not significant.
 

4. Prices

4.1. The prices of LOG INDUSTRIE GMBH are set forth in the order confirmation pursuant to Clause 2.2 or in the binding offer pursuant to Clause 2.4 and are quoted ex works. They are subject to VAT at the prevailing rate. Costs for packaging, loading and shipment, including insurance costs, are charged separately. 

4.2. Unless otherwise agreed, Clause 4.1 shall also apply in relation to international deliveries. Any charges incurred for unloading, lighterage and landing, port dues and wharfage shall be borne by the Purchaser.

4.3. Tariffs, consular fees and other taxes, charges, fees, etc. charged under foreign regulations, as well as costs in connection with the aforementioned, shall be borne by the Purchaser.

4.4. LOG INDUSTRIE GMBH shall ensure compliance with foreign regulations on packaging, weighing and tariffs, provided that the Purchaser provides exact written information in this regard without undue delay. Any additional costs that accrue due to delayed information shall be borne by the Purchaser.

4.5. If there is a period of more than three months between the formation of the contract and the supply of the Deliveries and if, during this time, the cost factors, on the part of LOG INDUSTRIE GMBH, for manufacturing and/or supplying the Deliveries increase (in particular as a result of collective bargaining agreements, wage increases and increases in prices for materials), LOG INDUSTRIE GMBH shall be entitled to charge the Purchaser the resulting increased prices. If the prices change by more than ten (10) per cent and the Purchaser does not accept the proposed price change, it shall be entitled to terminate the contract within thirty (30) days of communication of the price change; in the meantime, the prices in force at that time shall apply.

 

5. Payment Terms

5.1. All payments shall be made by the Purchaser in accordance with the individually agreed payment terms, in euros and without any deductions.

5.2. Unless otherwise agreed, all payments shall be due as follows: 

5.2.1. For Deliveries:

a) In relation to transactions with an order value of up to 50,000 euros: net cash upon delivery and receipt of the invoice.

b) In relation to transactions with an order value in excess of 50,000 euros and a delivery term of up to three months: 

one-third of the order value upon formation of the contract, the rest upon delivery.

c) In relation to transactions with an order value in excess of 50,000 euros and a delivery term of more than three months:

30% of the order value upon formation of the contract,

30% of the order value upon expiry of the first third of the agreed delivery term,

30% of the order value upon expiry of the second third of the agreed delivery term,

10% of the order value upon delivery.

5.2.2. In the event that the delivery is delayed for reasons attributable to the Purchaser, the delivery shall be deemed completed upon notification by LOG INDUSTRIE GMBH that it is ready for shipment.

5.3. If, on the due date, a transfer of payments is not possible from a country out of which the payment is to be effected, the Purchaser shall be obliged to deposit the amount owed on time, for the benefit of LOG INDUSTRIE GMBH, at a bank in that country which is acceptable to LOG INDUSTRIE GMBH. If the Purchaser has deposited the amount owed in a currency other than euros and if the exchange rate changes to the disadvantage of LOG INDUSTRIE GMBH by the time the payments are transferred, the Purchaser shall be obliged to pay the respective exchange loss to LOG INDUSTRIE GMBH.

5.4. Payment terms shall be deemed to be met if the purchase price has been received by LOG INDUSTRIE GMBH within the agreed time period into the account designated by LOG INDUSTRIE GMBH in the respective invoice.

5.5. If the Purchaser is in default of payment, LOG INDUSTRIE GMBH shall be entitled to claim default interest at a rate of 9 percentage points p.a. above the base interest rate as amended from time to time. In addition, LOG INDUSTRIE GMBH shall be entitled to claim higher interest payments on a different legal basis and/or to pursue other claims for damages.

5.6. The Purchaser shall not be entitled to offset with counterclaims, unless such counterclaims are undisputed or have been legally established.

5.7. If, following formation of the contract, the economic status of the Purchaser significantly deteriorates or circumstances become known to LOG INDUSTRIE GMBH as a result of which LOG INDUSTRIE GMBH has valid reason to believe that the claim for remuneration is endangered, LOG INDUSTRIE GMBH shall be entitled to refuse fulfilment of its own contractual obligations until such time as the Purchaser has either fulfilled its obligations under such a contract or has provided appropriate security for such obligations.

5.8. Without prejudice to the provisions under Clause 5.5, a delay or failure to pay shall also entitle LOG INDUSTRIE GMBH to set a reasonable grace period, all rights and actions reserved, within which the Purchaser, reciprocally and simultaneously in exchange for performance by LOG INDUSTRIE GMBH and at its own discretion, must either fulfil its obligations under the contract or provide security. Following unsuccessful expiry of such a grace period, LOG INDUSTRIE GMBH may withdraw from the contract.

 

6. Delivery Times and Terms of Delivery

6.1 Time limits and dates for the supply of Deliveries (hereinafter referred to as the “Delivery Time(s)”) are set out in the order confirmation/binding offer of LOG INDUSTRIE GMBH and shall commence no earlier than upon receipt by the Purchaser of the order confirmation/receipt by LOG INDUSTRIE GMBH of the written acceptance of the Purchaser. Delivery Times shall be deemed to be met if, within the agreed delivery period or the agreed time, the goods are ready for shipment, if the work to be accepted is ready for acceptance or if the service is ready to be performed and a notice to that effect has been issued to the Purchaser.

6.2. Unless otherwise contractually agreed, all deliveries shall be made ex works (INCOTERMS 2010). If goods are to be shipped, any freight or packaging costs shall be charged separately. In such cases, LOG INDUSTRIE GMBH shall take out transport insurance at the expense and for the benefit of the Purchaser. Any damage in transit must be communicated by the Purchaser to LOG INDUSTRIE GMBH and the shipment company in writing immediately upon receipt of the Deliveries.

6.3. Cases of force majeure shall entitle LOG INDUSTRIE GMBH to postpone the Delivery Time for a period equivalent to the duration of the event. If LOG INDUSTRIE GMBH is unable to meet the Delivery Time either at all or for a period lasting no less than six months due to an event of force majeure, LOG INDUSTRIE GMBH shall be released from its obligation to supply the Deliveries in question. 

An event of force majeure shall include all circumstances for which LOG INDUSTRIE GMBH is not responsible and which render supply of the Delivery by LOG INDUSTRIE GMBH commercially or legally impossible or impose upon LOG INDUSTRIE GMBH an unreasonable hardship, such as labour disputes (in particular strike, lawful lockout), civil war, acts of terrorism, unrest, war, natural disasters, official measures (e.g. import or export sanctions), shortages of energy or raw materials and delays to self-deliveries for which LOG INDUSTRIE GMBH is not responsible. In the case of delays to self-deliveries, LOG INDUSTRIE GMBH shall immediately notify the Purchaser and ensure immediate and adequate reimbursement for any consideration already provided by it. If LOG INDUSTRIE GMBH is released from its obligation to supply the Deliveries affected by the event of force majeure, the Purchaser shall be entitled to withdraw from the contract to this extent. In such cases, subject to the provisions of Clause 13, any claim for damages, reimbursement of costs or other indemnification shall be excluded. LOG INDUSTRIE GMBH shall be paid by the Purchaser for Deliveries already supplied/provided in accordance with the contractually agreed prices.

6.4. LOG INDUSTRIE GMBH’s obligation to comply with the agreed Delivery Times requires the timely and proper performance of all contractual cooperation obligations by the Purchaser at the Purchaser's own expense, i.e. in particular the provision of all required documentation, permits, authorisations, licences and clearances in relation to the Deliveries (and their installation) as well as the provision of the facilities, construction materials, raw materials and ancillary materials, tools, skilled staff and support staff, energy, water, light and heating supply, other connections as well as protective clothing and protective devices required for supplying the Deliveries. If there is a delay in the performance by the Purchaser of its obligations to cooperate, the Delivery Times for LOG INDUSTRIE GMBH shall be deferred by a reasonable period of time which must not less than the duration of the delay. The Purchaser shall reimburse LOG INDUSTRIE GMBH for any damages, costs and expenses incurred by LOG INDUSTRIE GMBH due to the Purchaser’s delayed or improper performance of its contractual obligations.

6.5. If, at the request by the Purchaser, the Delivery Time is deferred beyond the agreed delivery date, LOG INDUSTRIE GMBH shall charge the Purchaser for the storage costs incurred starting from the expiry of the original Delivery Time; in the event of storage at LOG INDUSTRIE GMBH’s premises, this shall be an amount equal to 0.5% (zero point five per cent) of the total invoice amount for each week of storage or part thereof. The Purchaser is free to prove that LOG INDUSTRIE GMBH has incurred fewer or no costs as a result of the storage.

6.6. If LOG INDUSTRIE GMBH’s deliveries are delayed, the Purchaser shall be entitled to claim damages in an amount equal to 0.5% (zero point five per cent) of the remuneration owed for the delayed delivery/performance for each complete week of such delay, however no more than a total aggregate maximum of 5% (five per cent) of the remuneration owed for the delayed delivery/performance, unless LOG INDUSTRIE GMBH proves that the Purchaser has suffered less or no damage. Any further liability of LOG INDUSTRIE GMBH for delays shall be excluded, subject to the provisions of Clause 13.

6.7. The Purchaser may not refuse to take or accept Deliveries due to minor defects.

 

7. Transfer of Risk

7.1. The risk shall pass to the Purchaser once the Deliveries have left LOG INDUSTRIE GMBH’s factory.

This shall apply even if partial deliveries are made – in which case the risk shall pass to the Purchaser for the partial delivery in question – or if LOG INDUSTRIE GMBH has taken on other commitments, e.g. the delivery, installation, assembly or payment of the shipping costs.

7.2. If the shipping of the Deliveries is delayed for reasons not attributable to LOG INDUSTRIE GMBH or if the Purchaser is in default of acceptance for any other reason, the risk shall pass to the Purchaser as soon as the delay commences. LOG INDUSTRIE GMBH may store the items to be delivered and take out insurance against storage risks at the expense of the Purchaser.

7.3. The above provisions shall not apply if pricing terms have been agreed in relation to which the INCOTERMS 2010, including any amendments that are effective at the time of the formation of the contract, provide for a different rule on the transfer of risk.

7.4. If the Purchaser is in default with accepting Deliveries or if the Purchaser returns the items delivered without being entitled to do so, LOG INDUSTRIE GMBH shall be entitled claim damages.

 

8. Equipment Provided by the Purchaser

The Purchaser shall provide all the equipment, items, information, etc. necessary for the performance of the contract, at its own expense, on time and free from defects.

 

9. Retention of Title

9.1. LOG INDUSTRIE GMBH reserves the following securities until such time when all claims to which LOG INDUSTRIE GMBH is entitled from the entire business relationship with the Purchaser are fully settled. These securities shall be released on a pro-rata basis, at the discretion of LOG INDUSTRIE GMBH, once their realisable value exceeds LOG INDUSTRIE GMBH’s claim against the Purchaser by more than 20% for more than a transitional period. In the case of running accounts, the securities serve to secure the net claim of such accounts.

9.2. Unless otherwise agreed, the Deliveries shall remain the property of LOG INDUSTRIE GMBH until payment has been made in full. The Purchaser may not pledge the Deliveries or transfer title therein for the purpose of security. If a third party nevertheless acquires any rights to the Deliveries, the Purchaser shall hereby assign in advance any and all resulting rights to LOG INDUSTRIE GMBH. LOG INDUSTRIE GMBH hereby accepts such assignment. The Purchaser shall immediately notify LOG INDUSTRIE GMBH if, in relation to the Deliveries, there has been a pledge, an attachment or any other disposition on the part of a third party.

9.3. The Purchaser shall exercise due care in handling the Deliveries subject to retention of title and shall properly maintain them. In particular, it shall insure them at its own expense against fire and water damage, other damage, theft and destruction in an amount equal to their replacement value. The Purchaser hereby assigns in advance any and all claims under the insurance contract to LOG INDUSTRIE GMBH. LOG INDUSTRIE GMBH accepts such assignment. LOG INDUSTRIE GMBH may request that the Purchaser provide appropriate documentation as evidence of relevant insurance coverage.

9.4. The Purchaser may resell the Deliveries supplied by LOG INDUSTRIE GMBH in the ordinary course of business. Any claims arising from such resale of Deliveries shall be hereby assigned by the Purchaser in advance to LOG INDUSTRIE GMBH. LOG INDUSTRIE GMBH hereby accepts such assignment. However, the assignment shall only apply up to an amount equal to the value of the resold Deliveries as invoiced by LOG INDUSTRIE GMBH. The part of the claim assigned to LOG INDUSTRIE GMBH shall have priority over and above the remainder of the claim.

9.5. Provided the Purchaser duly fulfils its contractual obligations vis-à-vis LOG INDUSTRIE GMBH, it shall be entitled to collect the claims that have been assigned to LOG INDUSTRIE GMBH for the purpose of security. At the request of LOG INDUSTRIE GMBH, the Purchaser shall disclose the retention of title to the third-party buyer and hand over any documentation necessary for LOG INDUSTRIE GMBH to assert its claims and to provide any necessary information. All costs related to the collection of the claims by LOG INDUSTRIE GMBH and to possible interventions shall be borne by the Purchaser.

9.6. If the Purchaser is in default with all or some of its payment obligations for more that fourteen (14) days and has been notified thereof by LOG INDUSTRIE GMBH including the resulting right of withdrawal, or if an application for insolvency proceedings has been made or should have been made, LOG INDUSTRIE GMBH shall be entitled to withdraw from the contract and to claim that all Deliveries still subject to retention of title be returned and to immediately take possession of such Deliveries. LOG INDUSTRIE GMBH may also immediately assert its further rights under the retention of title. The same shall apply in the event of any other material deterioration of the economic circumstances of the Purchaser. The Purchaser shall grant LOG INDUSTRIE GMBH or its appointees access to all of its business premises during normal business hours. LOG INDUSTRIE GMBH shall be entitled to remove the Deliveries.

9.7. If the Purchaser processes the Deliveries or transforms or combines these with other items, such processing, transformation or combination activities shall occur for the benefit of LOG INDUSTRIE GMBH. LOG INDUSTRIE GMBH shall become the direct owner of the items resulting from such processing, transformation or combination activities. If this is not possible for legal reasons, LOG INDUSTRIE GMBH and the Purchaser agree that LOG INDUSTRIE GMBH shall – at all times during the processing, transformation or combination of items – become the owner of the new item and that the item created by such processing, transformation or combination activities shall be subject to retention of title. The Purchaser shall store the new item for LOG INDUSTRIE GMBH with the due care and diligence of a prudent businessperson.

9.8. If the retention of title in the aforementioned form is not valid according to the laws of the country of

destination, the Purchaser shall cooperate to ensure the establishment of an equivalent security interest

according to the provisions of said country for the benefit of LOG INDUSTRIE GMBH.

 

10. Rights of the Purchaser in the Case of Defects

10.1. LOG INDUSTRIE GMBH warrants that it shall perform the services – where necessary – with the required care and expertise and that deliveries and/or goods shall correspond with their contractually agreed specification at the time of delivery and be free from defects in material and workmanship under normal use and service. All other warranties and other rights implied by statute or law are excluded. LOG INDUSTRIE GMBH specifically disclaims any implied warranties of merchantability or fitness for a particular purpose. LOG INDUSTRIE GMBH does not make any guarantees, including in relation to particular properties.

10.2. In order to determine any defects, the Purchaser shall examine the Deliveries immediately upon receipt. In the event of obvious defects in the Deliveries, it shall notify LOG INDUSTRIE GMBH thereof in writing within two weeks. Any hidden defects in the Deliveries shall be communicated in writing to LOG INDUSTRIE GMBH by the Purchaser immediately upon discovery, however, no later than ten days following discovery. If the Purchaser fails to comply with the aforementioned preclusion periods, the Deliveries shall be deemed accepted and the Purchaser shall lose its defect rights as per Clauses 10.3. and 10.5.

10.3. If Deliveries prove to be defective due to circumstances present prior to the transfer of risk, the Purchaser shall be entitled to claim supplementary performance, i.e. at the discretion of LOG INDUSTRIE GMBH, either rectification of the defect or delivery of an item free from defects. LOG INDUSTRIE GMBH shall be granted a reasonable period of time to fulfil this obligation.

10.4. LOG INDUSTRIE GMBH may make the supplementary performance dependent upon payment by the Purchaser of a reasonable portion of the remuneration taking into account the nature of the defect. LOG INDUSTRIE GMBH may reject supplementary performance if this can only be provided at an unreasonable expense.

10.5. If supplementary performance provided by LOG INDUSTRIE GMBH has failed twice, if LOG INDUSTRIE GMBH refuses to provide such supplementary performance due to unreasonable expenses or if LOG INDUSTRIE GMBH fails to provide such supplementary performance within a reasonable grace period set by the Purchaser, the Purchaser shall be entitled to reduce the purchase price or to withdraw from the contract and to claim compensation for futile expenses or damages in lieu of performance. The Purchaser shall not be entitled to withdraw from the contract or to claim damages in lieu of performance if the defect of the Deliveries is considered only minor.

10.6. The Purchaser shall have no rights in relation to such defects, for example, (a) arising from any drawings, designs and/or specifications supplied by the Purchaser; (b) caused by fair wear and tear;

(c) caused by improper storage, operation, maintenance or excessive use of the contractual item, caused by use of unsuitable operating materials, construction work and building ground, or caused by improper modifications, repair work or damage to seals of the Deliveries;

(d) caused by the failure to follow LOG INDUSTRIE GMBH’s instructions (in writing or verbally); (e) otherwise as a result of a violation of contractual provisions and product specifications by the Purchaser or by a third party; or (f) where software is included in the Deliveries: caused by non-reproducible software errors.

10.7. Any warranty claims of the Purchaser for defects of the deliveries and/or goods shall become time-barred one year after delivery of the item. This period shall not apply if longer periods of time are required by law with respect to defects in buildings and deficiencies in building construction or in the event of intent, fraudulent concealment or failure to comply with a quality guarantee.

10.8. The rights of the Purchaser for defective services shall become time-barred six months after performance of such services.

10.9. Replacement or repair of Deliveries due to defects shall not result in an extension of the limitation periods, except in cases of Section 203 et seq. of the German Civil Code (BGB).

10.10. Unless otherwise agreed, LOG INDUSTRIE GMBH’s obligation to supply the Deliveries free from any industrial property rights and third-party copyrights shall be limited to the country of delivery. If a third party asserts any legitimate claims against the Purchaser for the infringement of industrial property rights by the Deliveries, LOG INDUSTRIE GMBH shall be obliged within the time limit set out in Clause 10.7, at its expense, to remedy this defect in title by creating a condition which no longer infringes the industrial property rights. LOG INDUSTRIE GMBH shall be granted a reasonable period of time to fulfil this obligation. If this is deemed impossible for LOG INDUSTRIE GMBH under reasonable conditions, the Purchaser shall have the statutory rights of withdrawal or payment reduction.

The liability pursuant to Clause 10.10 shall only apply, however, if the Purchaser immediately notifies LOG INDUSTRIE GMBH of such claims in writing, does not acknowledge them and LOG INDUSTRIE GMBH retains the right to carry out all defensive measures and negotiations. Claims of the Purchaser shall be excluded if it is responsible for the infringement of industrial property rights or has caused such infringement by giving specific instructions or by using the Deliveries in a way that had not been agreed or that lies outside the intended use, or if it has caused such infringement by modifying the Deliveries or using them together with products that have not been supplied by LOG INDUSTRIE GMBH. To the extent that a third party asserts a claim of infringement of industrial property rights against LOG INDUSTRIE GMBH based on the exceptions specified above, the Purchaser shall indemnify LOG INDUSTRIE GMBH in respect of any costs, expenses or damages arising out of such action, subject to immediate written communication to the Purchaser by LOG INDUSTRIE GMBH of such a claim and the Purchaser’s right to remedy this defect in title by creating a condition which no longer infringes the industrial property rights.

10.11. In the event of other defects in title, the provisions in Clause 10 shall apply mutatis mutandis.

10.12. If software that is included in the Deliveries contains third-party components which LOG INDUSTRIE GMBH has licensed under generally used “open source” licence terms, the provisions of this contract shall apply to those software components to the extent that they do not conflict with the “open source” licence terms. If necessary, the Purchaser agrees to conclude a licence agreement with the respective licensor of such software.

10.13. Broader claims or claims other than those under this Clause 10, which may be brought by the Purchaser against LOG INDUSTRIE GMBH or its vicarious agents, based on a defect in title, shall be excluded. Clause 12 shall apply.

 

11. Industrial Property Rights

11.1. Notwithstanding all rights of the Purchaser under this contract, all rights and claims to and from “industrial property rights” (this covers (a) patents, utility models and industrial designs, including all applications and registrations, (b) all copyrights, including software in object and source code, (c) all trade secrets, inventions, know-how and technical data) – of whatever nature arising out of or in connection with the Deliveries – shall be the sole and exclusive property of LOG INDUSTRIE GMBH or its third-party licensor, whether or not specifically recognised, registered or finalised under the applicable law.

11.2. LOG INDUSTRIE GMBH shall grant the Purchaser a limited, non-exclusive, non-transferable, royalty-free right to use such industrial property rights to the extent required for complying with the purpose of the contract as well as for the maintenance of the Deliveries. Unauthorised copying shall be strictly prohibited; however, subject to LOG INDUSTRIE GMBH’s consent, it shall be permitted to create reasonable back-up copies of user-loadable programs and any related updates or revisions in order to restore authorised copies. The Purchaser shall not otherwise copy, translate, modify, adapt, decompile, disassemble or reverse-engineer any Deliveries, unless otherwise stipulated by applicable law.

11.3. For commercial-off-the-shelf products from the electronics and software sector (“COTS”), the licensing conditions of the respective COTS licensors shall prevail.

 

12. Liability

12.1. LOG INDUSTRIE GMBH shall be liable without limitation for intent and gross negligence.

12.2. LOG INDUSTRIE GMBH shall be liable for ordinary negligence – except in the case of injury to life, limb or health – only if essential contractual obligations are breached with liability being limited to damage that is foreseeable and typical for the contract in question at the time of performance. Essential contractual principal obligations are those obligations whose fulfilment is crucial for the proper performance of the contract and on whose observance the Purchaser can regularly rely and expect.

12.3. Liability under Clause 12.2 shall be limited to an amount not exceeding 20% of the net contract price for all events of damage collectively arising out of or in connection with the contract. For Deliveries where the remuneration is calculated on an annual basis, the liability shall not exceed 10% of the net contract price for the twelve calendar months preceding the damaging event.

12.4. Subject to Clause 12.6, any liability for business interruption, production downtime, substitute procurement, removal and re-installation costs, loss of use, loss of good will, loss of revenue or profit, loss of savings, regardless of whether or not such damages are considered direct or indirect, and for any indirect, consequential and/or unforeseeable damage shall be excluded.

12.5. Any further liability other than that provided in these General Terms and Conditions of Sale shall be excluded, regardless of the legal basis of such claims.

12.6. The limitations and exclusions of liability pursuant to Clauses 12.2, 12.3, 12.4 and 12.5 shall not apply to any mandatory liability prescribed by statute (e.g. under the German Product Liability Act), intent or gross negligence or to any liability under a guarantee given irrespective of who is at fault.

12.7. If the liability of LOG INDUSTRIE GMBH is excluded or limited pursuant to Clauses 12.2, 12.3, 12.4 and 12.5, this shall also apply to the personal liability of LOG INDUSTRIE GMBH’s employees, staff members, representatives or vicarious agents.

 

13. Reservation of Performance, Right to Withdraw

13.1. The performance of the contract shall be subject to the proviso that there are no impediments as a result of German, US or other applicable national, EU or international provisions under foreign trade legislation and that no embargoes or other sanctions stand in the way.

13.2. The Purchaser shall procure all information and documents necessary for the export, shipment and/or import of the Deliveries.

13.3. Furthermore, the Purchaser shall refrain from exporting or re-exporting, as the case may be, any Deliveries (including any hardware and/or software and/or technology as well as corresponding documentation, regardless of the mode of provision and including any kind of technical support) to any other country without obtaining the necessary licences and/or permits of imports and exports that may be required under any applicable legislation. LOG INDUSTRIE GMBH shall be entitled to withdraw from the contract if the Purchaser is in violation of applicable rules and regulations of this type.

 

14. Confidentiality

14.1. Each Party shall keep confidential all materials and information (including the documentation as per Clause 3.2) received from the respective other party, and marked as confidential or which should be understood to be confidential, and shall not disclose it to third parties or use it for any other purposes than those set out in the contract, without the prior written permission of the disclosing party. Use of confidential information shall be at the relevant party’s own risk.

14.2. The above confidentiality obligation shall not apply to confidential information which (i) is, or subsequently becomes, legally and publicly available through no fault of the receiving party; or (ii) was in the lawful possession of, or known to, the receiving party, which can be demonstrated by the receiving party’s internal records; or (iii) is obtained by the receiving party from a third party without any obligations of confidentiality; or (iv) is independently developed by the receiving party without access to or use of the confidential information; (v) is disclosed by the receiving party after written approval of the disclosing party; (vi) needs to be disclosed pursuant to applicable law or the decision of a competent court or authority. In such cases, the receiving party shall promptly inform the disclosing party thereof, in any case before any confidential information is disclosed, so that a provisional legal protection or another appropriate legal remedy may be sought. Any disclosure must be limited to such confidential information to which the mandatory disclosure requirement applies.

14.3. Each Party may disclose confidential information to its affiliates as per Section 15 et seq. of the 

Stock Corporation Act (Aktiengesetz) if this is required to fulfil the contract.

14.4. Each Party shall limit the disclosure of confidential information to employees within its own organisation, including its affiliates, external legal counsels, service providers or consultants on a “need to know” basis only and provided that such recipients have taken necessary measures to ensure compliance with the requirements of this contract. Disclosure to external service providers shall be limited to the extent necessary to enable them to provide their services. Under no circumstances shall the receiving party exercise a lesser degree of care in safeguarding the confidential information than it would exercise for its own information of similar sensitivity and importance, and in any case not less than reasonable care.

14.5. The obligations set forth in this Clause 14 shall bind the Parties for a period of five years from the date of disclosure of the relevant confidential information and such an obligation shall survive the termination or expiration of the offer or the ensuing contract.

 

15. Applicable Law and Place of jurisdiction

15.1. Regarding the business relationship between LOG INDUSTRIE GMBH and the Purchaser, the law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on the International Sale of Goods (CISG).

15.2. The exclusive place of jurisdiction for all disputes arising from the business relationship shall be Kiel, Germany.

 

16. Final Provisions

16.1. Amendments and additions to the contract as well as collateral agreements must be made in writing and must be signed by duly authorised representatives of the Parties in order to be legally effective.

The same shall also apply to a waiver of this written form clause.

16.2. If one of the above provisions is or proves to be ineffective, the validity of the remaining provisions shall not be affected. The Parties shall immediately replace the invalid provision with a valid provision which, in factual, legal and economic terms, most closely reflect the General Terms and Conditions of Sale in their entirety and the contractual arrangements.