Terms And Conditions
Part I – Standard Purchasing Terms And Conditions
§ 1 Exclusive Application
1. Unless expressly agreed otherwise in writing in a specific case for all or some individual provisions, these Purchasing Terms and Conditions shall apply exclusively to any and all contracts and orders issued by us and to agreements entered into on that basis here inafter referred to as “Order(s)”. They shall also apply to any future Orders. Any and all standard terms and conditions of the Contractor or Supplierhereinafter referred to as “Supplier(s)” shall not be acknowledged by us per se, even if we do not expressly contest same or accept the Supplier’s goods/services without reservation in knowledge of the Supplier’s standard terms and conditions and/or pay the Supplier’s invoices without reservation.
2. Any deviations from or modifications to agreements between the Supplier and BESTAIR, including these Purchasing Terms and Conditions, must be in writing. This writing requirement may be waived in writing only.
3. Should these Purchasing Terms and Conditions or individual legal transactions between BESTAIR and the Supplier require written form, the relief under § 127 paragraph 2 of the German Civil Code (“BGB”) shall apply.
§ 2 Offer, Order, Order Confirmation
1. Any offers by the Supplier shall be made free of charge and shall not give rise to any obligation for us. In the offer, the Supplier shall not deviate in any respect from the terms of our enquiry. In the event of deviations, the Supplier shall make express reference thereto.
2. The Supplier shall accept in writing our order within a period of 3 (three) business days of receipt (order confirmation); otherwise, we may freely revoke the order without any further obligation on our part. Should the order confirmation deviate from the actual order, we shall be bound to such deviation only if the Supplier makes express reference thereto and we consent to the deviation in writing. The acceptance of goods or services and payments by us shall not constitute consent.
§ 3 Prices and Payment
1. The agreed prices are fixed prices. Subsequent price increases, including those due to increased labour or material costs, shall be excluded. Unless expressly agreed in writing in a specific case, the prices shall cover “carriage paid” delivery, including packaging; the return of packaging shall require a separate agreement.
2. Invoices shall be issued in EURO, and payments by BESTAIR shall be made in EURO only.
3. Payments by BESTAIR shall be made within 10 days with a cash discount of 3%, or within 30 days net, each such period being calculated from receipt of a proper and reviewable invoice.
4. We shall be entitled to the statutory rights of setoff and retention without limitation.
§ 4 Delivery Time and Delivery
1. The agreed delivery time shall be binding and strictly adhered to. The timeliness of deliveries shall be determined by the time of receipt at the point of receipt stipulated by BESTAIR. The timeliness of deliveries requiring installation and/or assembly and of other services shall be determined when they are ready for acceptance. BESTAIR shall be notified without undue delay in the event of an identified delay in a delivery or service stating the reasons therefor and the foreseeable duration and a decision by BESTAIR’s shall be obtained; the statutory rights to which we are entitled for late delivery or services shall remain unaffected thereby.
2. Should the Supplier default in delivery, we shall be entitled to the relevant statutoryclaims without limitation.
3. Deliveries and services shall be provided “carriage paid”, including packaging.
4. Partial deliveries and early deliveries shall be permissible only if we have expressly consented thereto in writing. However, the payment claim shall fall due and payable no sooner than the (original) agreed deliverydate.
5. In the event of force majeure, stoppages or disruptions, in particular, strikes or other unforeseeable events for which we are not responsible and that make acceptance or use of the goods/service at our business or at our customer’s impossible or considerably more difficult, our obligation to take acceptance shall be reasonably postponed in accordance with our actual needs. If acceptance is delayed as a result by more than 8 (eight) weeks, we may also at our discretion rescind the contract, in whole or in part (based on the quantity affected by the delay).
§ 5 Passing of Risk, Acquisition of Title
1. The risk of accidental damage or accidental destruction (loss) to the delivery shall pass only upon receipt at the place of receipt stipulated by us. This shall apply even if we have stated that we are prepared to assume shipping costs. In the event of (additional) services to be provided (installation, assembly, etc.) such risk shall pass to us upon acceptance.
2. We shall acquire unlimited title in the goods upon the passing of risk.
§ 6 Liability for Defects
1. Upon acceptance, we shall inspect the goods to ensure that the packaging is intact and the number of stipulated packages (Packstücke) is complete. Materials that flow into the production process shall be randomly inspected without undue delay as a rule, within 3 business days for their quantity, material qualities and conformity with prescribed measurements. In this respect, we shall then without undue delay complain to the Supplier concerning any ascertainable defects and/orquantitative differences. We shall without undue delay after discovery complain aboutanylatent defects, such as those that can only be ascertained during the processing process, material processing or pre-processing for manufacturing. Should we receive a so-called acceptance inspection certificate from our Supplier, in which the Supplier states that the delivered goods meet the agreed (quality) criteria, our duty to inspect the goods and file a complaint shall be limited to an inspection to ascertain that the packaging is intact and the numberof packages is complete upon acceptance of the goods. Otherwise such duty shall be deemed excluded.
2. We shall be entitled to statutory warranty claims without limitation. In particular, our claims to reimbursement for expenses and compensatory damages shall not be limited or excluded in terms of the grounds therefor or their quantum. Notwithstanding the foregoing, BESTAIR may demand that the Supplier at its expense first render subsequent performance, i.e. at our discretion remedy the defect, supply goods in a perfect condition or provide defect-free services. Section 439 paragraph 3 BGB shall remain unaffected. Moreover, we may, at the Supplier’s expense, remedy the defect ourselves in the event of impending danger or special urgency.
3. Unless expressly agreed otherwise in writing in a specific case, the statutory provisionsshall apply to the limitations period for warranty claims. Our claims under rights of recourse pursuant to §§ 478, 479 BGB shall remain unaffected.
§ 7 Liability
1. The Supplier’s liability whatever the legal basis therefor for any and all damage and/or expenses incurred by us in connection with the delivered goods and/or service provided, in particular, as a result of use of the delivered goods in accordance with the terms of the agreement, shall be based on the relevant statutory provisions.
2. Should third parties assert claims against BESTAIR of any kind, whatever the legal basis therefore, based on a defect or a fault in the delivered goods and/or the service provided, the Supplier shall indemnify us against such claim if and to the extent that the cause thereof lies in its control or organisation. In this context, the Supplier shall also reimburse us any and all expenses incurred by us as a result of us having to mount a defence against such claims, and any and all other expenses incurred by us in this connection, including expenses associated with any recalls or similar (precautionary) measures. Any other statutory claims shall remain unaffected.
§ 8 Rights in Documents, Confidentiality and Limitation of Use
1. BESTAIR reserves its title and other rights, in particular, intellectual and industrial property rights (e.g. copyrights), in drawings, norms, guidelines, analytical methods, formulae, samples, calculations and other documents transmitted or otherwise disclosed to the Supplier from time to time or within the framework of contractual performance or the preparations for the contractual relationship.
2. During the contract term and thereafter, the Supplier shall keep strictly confidential the aforementioned documents and any and allother technical and/or business information and our know-how marked “confidential” or (orally) identified as confidential or that, given its nature (taking into account the legal concept of business and trade secrets), must be regarded as confidential, and that is entrusted to it or disclosed to it in association with performance and settlement of an order. Moreover, the Supplier shall use such information solely for purposes of the respective contract and shall impose equivalent obligationsupon its employees, suppliers, sub-contractors and other third parties to whom such documentsor information or know-how are disclosed. The foregoing obligations shall not apply, however, to information or know-how of which the Supplier had knowledge when it obtained such information or know-how, which forms part of the technological state of the art which isin the public domain, or which is subsequently disclosed without any fault on its part.
3. After settlement of the order, any drawing, norms, guidelines, analytical methods, formulae, illustrations, templates, calculations and other documents and any and all copies thereof shall be returned to BESTAIR without undue delay.
4. The Supplier shall provide BESTAIR with any and all requisite documents necessary for a discussion of the subject matter of the delivery. Such a discussion or any other involvement on the part of BESTAIR shall not discharge the Supplier from its defect-related liability or any other statutory or contractual obligations. Documents of any kind required by BESTAIR for use, installation, assembly, processing, storage, operation, maintenance, inspection, and repair of the subject matterof the delivery shall be provided to BESTAIR in a timely manner, without any request therefor and free of charge.
§ 9 Rights in Production Materials
1. Should we provide the Supplier with moulds, models, tools etc. – hereinafter referred to as “Production Materials” – we shall retain title therein. Any processing or restructuring shall always be carried out for us as the manufacturer within the meaning of § 950 BGB, but without, however, any obligation on ourpart. If our goods subject to the retention of title are processed together with other items notowned by us, then we shall acquire co-ownership in the new item according to the ratio of the value of our item (purchase price plus value added tax) to the other processed items at the time of processing. If the Production Materials provided by us is connected or inseparably combined with other items not owned by us, we shall acquire co-ownership in the new item according to the ratio of the value of the item subject to the retention of title (purchase price plus value added tax) to the other connected or combined items as at the time ofconnection or combination. Should the connection or combination be carried out in the mannersuch that the Supplier’s item is to be regarded as the principal item, it is hereby agreed that the (co-)ownership of the Supplier in the integrated item shall pass to us in proportion to the value of our share in the item. The Supplier shall store the relevant items for us free of charge with the care of an ordinary businessman.
2. The Supplier shall be liable for any and all damage incurred as a result of the Production Materials provided by BESTAIR being improperly processed by the Supplier or its vicarious agent or being destroyed or rendered useless by damage to the Production Materials attributable to the elements.
3. Title in Production Materialsmanufactured for purposes of implementation of the orderby the Supplier shall pass to us upon payment, even if they remain in the Supplier’s possession. In the latter case, it shall be deemed agreed that the Supplier has custody of the Production Materials on behalf of BESTAIR. BESTAIR may at any time demand delivery up of the Production Materials. Any rights of retention on the part of the Supplier shall be excluded, unless they are based on counterclaims that have been recognised by us or confirmed in a final and binding judgment.
4. The Supplier shall use the ProductionMaterials exclusively for manufacturing goods ordered by BESTAIR. Moreover, the Supplier shall at its own expense take out any and all necessary insurance policies to protect the Production Materials owned by BESTAIR, and shall insure them in an adequate amountat the replacement value, in particular, against loss, fire, water, theft, burglary, explosion, lightening strike, storm and other damage attributable to the elements and that may typically be covered by property insurance. However, in the event of culpable action, its liability shall not be restricted to the insurance benefits. At the same time, the Supplier hereby assigns to BESTAIR all compensation claims under such insurance policies; BESTAIR hereby accepts such assignment. The Supplier shall perform any necessary maintenance and inspection work and any maintenance and repair work on the Production Materials at its own cost and in good time.
§ 10 Assembly, Maintenance, Inspections, Repairs, Third Party Employees, Third Party Companies
Should assembly, maintenance, inspections, repairs, etc. be performed, the appointed person/groups of persons shall conduct themselves in accordance with the instructions of our security experts or our security officer. Moreover, the duties set forth in § 8 shall apply to them mutatis mutandis.
§ 11 Third Party Rights
1. The Supplier warrants that no rights, in particular, no third party industrial property rights (e.g. patents, copyrights, trade marks or other intellectual or industrial property rights) are infringed in connection with its goods or services.
2. Should claims be asserted against BESTAIR by a third party based on the infringement of industrial property rights, the Supplier shall indemnify us against such claims. The Supplier may not without BESTAIR’s consent enter into any agreements with the third party to settle its claims based on infringement of industrial property rights, in particular, reach a settlement. The Supplier’s indemnity shall also apply to any and all expenses incurred by BESTAIR under or in connection with the assertion of claims against it by third parties.
§ 12 Miscellaneous
1. These Purchasing Terms and Conditions and the entire legal relations between BESTAIR and the Supplier shall be governed by the laws of the Federal Republic of Germany. Application of the United Nations Convention on the International Sale of Goods (“CISG”) or any other bilateral or multilateral treaties concerning the harmonisation of international sale of goods shall be excluded.
2. Place of performance for the goods or services shall be the place at which in accordance with the order the goods are to be delivered or the service is to be provided. Place of performance for our payment shall be our company’s registered office.
3. Forum for any and all disputes under or in connection with these Standard Purchasing Terms and Conditions and under the entire legal relations between BESTAIR and the Supplier is Mannheim, provided the Supplier is a qualified merchant. BESTAIR may, however, also bring proceedings against the Supplier at its general forum.
4. Should one or more of these Purchasing Terms and Conditions or provisions in legal transactions between BESTAIR and the Supplier be or become invalid, the validity of the remaining provisions shall remain unaffected thereby.
Mannheim, March 9 th, 2007
Part II – Standard Terms and Conditions of Sale and Delivery
§ 1 Exclusive Application
Unless expressly agreed otherwise in writing in a specific case for all or some individual provisions, these Standard Terms and Conditions shall apply exclusively to any and all goods and services provided by BESTAIR. They shall also apply to any future business relations. Any and all standard terms and conditions of the party making the order (hereinafter referred to as the “Customer”) shall not be acknowledged by us per se, even if we do not expressly contest same or provide goods and services ordered by the Customer without reservation in knowledge of the Customer’s standard terms and conditions.
§ 2 Offer, Written Form, Cancellation
1. Our offers are non-binding.
2. Orders and declarations of acceptance shall be legally valid only if confirmed by us inwriting. In the case of immediate delivery/service, written confirmation may be replaced by invoicing.
3. Deviations from and modifications to agreements between the Customer and BESTAIR, including these Standard Terms and Conditions, must be in writing. The writing requirement may be waived in writing only.
4. Should these Standard Terms and Conditions of Sale and Delivery or individual legal transactions between BESTAIR and the Supplier require written form, the relief under § 127 paragraph 2 of the German Civil Code (“BGB”) shall apply.
5. Should the Customer cancel the contract for reasons for which we are not responsible, we may demand reimbursement of the costs incurred up to the date of cancellation. The right to assert additional damage shall remain unaffected thereby.
6. Section 312e paragraph 1 sentence 1 numbers 1 to 3 and sentence 2 of the German Civil Code (“BGB”) shall not apply to transactions concluded by way of e-business, unless the Customer is a consumer within the meaning of the BGB.
§ 3 Delivery Time and Delivery
1. Dates and delivery deadlines shall be nonbinding unless expressly agreed otherwise in writing. Should we state specific delivery deadlines and dates, this shall be subject to correct and timely delivery by our own suppliers and manufacturers.
2. Delivery deadlines shall be suspended during events of force majeure, stoppages or disruptions, in particular, strikes or other unforeseeable events for which we are not responsible. Should the delivery be delayed by more than 8 (eight) weeks as a result, each party may rescind the contract, in whole or in part (based on the quantity affected by the delay). Moreover, the delivery deadline shall be extended by any period during which the Customer itself is late in performing its contractual duties.
3. If, in application of paragraph 2, the delivery time is delayed or should we be discharged of our obligation as a result of rescission by one of the parties, then the Customer may not derive any compensatory damages claims therefrom.
4. Our goods and services shall be provided “ex-works”.
5. BESTAIR may render partial delivery and partial services. In the case of supply agreements, each partial delivery and partial service shall be deemed independent performance.
§ 4 Default in Acceptance
1. We may store the delivered items at the Customer’s risk and expense for the duration of any default in acceptance by the Customer. To this end, we may also avail ourselvesof the services of a shipping company or storage company.
2. The Customer shall reimburse us any and all costs associated with the default in acceptance, in particular, storage costs. The right to assert additional damage shall remain unaffected thereby.
3. Should the Customer fail to acceptdelivered items for reasons for which we are not responsible, we may, following expiry of a reasonable period, rescind the contract and/or demand reimbursement of fruitless expenses or compensatory damages instead of performance.
§ 5 Passing of Risk
The risk for accidental damage or accidental destruction (loss) of the delivered items shall pass to the Customer upon sending or delivery thereof to the shipping agent, and no later, however, than upon departure from our plant, irrespective of whether the shipment is sent from the place of performance or who bears the shipping costs. Should the Customer have defaulted in acceptance, risk shall pass to the Customer upon commencement of such default. If special instructions from the Customer must be awaited for shipping, risk shall passto the Customer upon notification that the goods are ready for shipment. Risk shall also pass upon notification that the goods are ready for shipment if shipment is then delayed or becomes impossible without any fault on our part.
§ 6 Complaints for Defects, Liability for Defects
1. Information concerning the delivered goods or services (e.g. in catalogues, product information, electronic media or on labels) is based on our general experience and knowledge, and constitute only guidelines or identification marks (Kennzeichen). Neither such product information nor expressly agreed performance features/purposes of use shall discharge the Customer from its obligation to test the product for its suitability for the intended purpose. Information concerning the shelf life, condition (quality) or potential uses of our products shall not constitute any warranty within the meaning of § 443 BGB, unless they are expressly identified as such in writing.
2. Without undue delay following delivery thereof, the Customer shall inspect the goods to verify whether they meet the contractually agreed quantity and quality criteria and are suitable for the intended use. In the case of patent defects/differences in quantity, formal complaints must be filed with BESTAIR without undue delay and in writing (and no later, however, than within 14 days), and in the case of latent defects/differences in quantity, without undue delay and no later than within 1 (one) year of delivery of the goods to the Customer, stating the order data, the invoice and delivery note number, and giving a short description of the fault. Should a timely complaint not be filed, any warranty claims against us shall be excluded, unless we maliciously concealed the defect or provided a warranty.
3. Any liability for defects shall lapse if our operating and maintenance instructionsare not followed, modifications are performed, parts are changed or materials are used with the goods that do not conform with the original specifications, provided the defect is based thereon. The same shall apply if the defect can be attributed to improper use, storage and handling of the products or third party interference therewith.
4. Our liability for defects shall be limited to subsequent performance, i.e. the Customer’s right to demand at its discretion rectification of the defect or delivery of an item in a perfect condition at our expense; § 439 paragraph 3 BGB shall remain unaffected. Should for whatever reason subsequent performance fail following a reasonable grace period , the Customer may at its discretion demand reduction of the purchase price or rescind the contract; in this event subject to the provisions of § 7 the right to assert compensatory damages or reimbursement of fruitless expenses shall remain unaffected. These rights shall vest in the Customer immediately, i.e. without the expiry of a reasonable grace period, if we refuse to render subsequent performance or the customer cannot be reasonably be expected to agree to subsequent performance for other reasons. The Customer’s claims in the event that BESTAIR provides a warranty and the claims under rights of recourse pursuant to § 478, 479 BGB shall remain unaffected by the foregoing provisions; however, in the event of recourse, the Customer shall have compensatory damages claims only in accordance with § 7 of these Standard Terms and Conditions.
5. Liability for defects resulting from normal wear and tear shall be excluded. Moreover, there shall be no warranty claims for worn parts.
6. Warranty claims against us shall become statute barred after 1 (one) year, commencing with delivery of the goods, unless we maliciously concealed the defect, in which case the normal limitations period of 3 years shall apply.
7. Warranty claims against us shall vest in the Customer only, and may not be assigned.
§ 7 Limitation of Liability
1. We shall be liable for damage or fruitless expenses whatever the legal basis therefor only if they are based on a wilful or grossly negligent violation of a duty and/or tortious conduct on the part of BESTAIR, its statutory representative or vicarious agent. In the event of ordinary negligence, any liability on our part shall be excluded. This exclusion of liability shall not apply if we, our statutory representatives or vicarious agents violate a material contractual duty. In this event, however, the quantum of any compensatory damages or reimbursement of expenses shall be limited to the damages/expenses that BESTAIR would typically have had to expect based on the circumstances known to it as at the date of conclusion of the agreement and that were therefore foreseeable at such time, provided no wilful or grossly negligent conduct has occurred.
2. Our liability for damages for injury to life, limb or health or under the Product Liability Act (Produkthaftungsgesetz) or as the result of provision of a warranty shall remain unaffected by the foregoing provisions.
3. The liability provisions set forth in paragraphs 1 and 2 shall also apply to instructions and suggestions for use.
4. Should our liability be excluded or limited pursuant to the foregoing provisions, this shall also apply to the personal liability of our employees, workers, representatives and vicarious agents.
§ 8 Retention of Title
1. We shall retain title in the goods delivered by us until full payment of any and all receivables owed under the business relationship with the Customer. Title shall pass to the Customer only when the Customer has satisfied all its liabilities towards us.
2. Any processing or restructuring shall always be carried out for us as the manufacturer within the meaning of § 950 BGB, butwithout, however, any obligation on our part. If the goods are processed together with other items not owned by us, then we shall acquire coownership in the new item according to the ratio of the value of the purchased item (final invoice amount plus value added tax) to the other processed items at the time of processing. If the goods are connected or inseparably combined with other items not owned by us, we shall acquire co-ownership in the new item according to the ratio of the value of the purchased item subject (final invoice amountplus value added tax) to the other connected or combined items as at the time of connection or combination. Should the connection orcombination be carried out in the manner such that the Customer’s item is to be regarded as the principal item, it is hereby agreed that the (co-)ownership of the Customer in the integrated item shall pass to us in proportion to the value of our share in the item. The Customer shall store the relevant items for us free of charge with the care of an ordinary businessman. Should the goods created as a result of the connection or combination be resold, the advance assignment agreed to below shall apply only in an amount equivalent to the value of the goods subject to the retention of title.
3. The Customer may process and/or sell the goods subject to the retention of title during the ordinary course of business, provided the Customer is not in default. Pledges or transfer by way of security shall not be permitted. The Customer hereby assigns to us by way of security and in full (including value added tax) any receivables arising as a result of resale or for other legal grounds (insurance, tortious conduct) in relation to the goods subject to the retention of title (including any and all receivables on account (Saldoforderungen) from the current account. We hereby accept such assignment. Subject to revocation, we authorise the Customer to collect the receivables assigned to us for the Customer’s account and in the Customer’s name. However, the authorisation to collect such receivables may be revoked only if the Customer does not properly meet its payment obligations. In this event, we may demand that the Customer disclose to us the assigned receivables and the relevant debtors, provide any information required for collection thereof, furnish the associated documentation and notify the debtors of the assignment.
4. Should third parties interfere with the goods subject to the retention of title, the Customer shall indicate our title in the goods and notify such parties without undue delay. Moreover, the Customer shall also notify us in order that, where applicable, we may file a (third party) action against execution pursuant to § 771 of the German Code of Civil Procedure (“ZPO”). Should the third party be unable to reimburse us the judicial and extra-judicial costs of an action pursuant to § 771 ZPO, the Customer shall be liable for any loss incurred by us in this respect.
5. Should the Customer default in payment or should it culpably fail to meet other material contractual obligations, we may repossessthe goods subject to the retention of title or, where applicable, demand assignment of the Customer’s claims for possession against third parties. Should we repossess the goods subject to the retention of title, this shall notconstitute rescission of the contract, unless we expressly declare same.
6. Should the realisable value of the security exceed the receivables to be secured by 10%, (including any interest and ancillary costs), we shall, at the Customer’s request and at our discretion, release security to this extent.
7. Should the foregoing provisions concerning the retention of title not operate to provide security in other nations in the same manner as in the Federal Republic of Germany, the Customer shall use its best efforts to create such security rights for BESTAIR without undue delay. The Customer shall participate in any and all steps necessary and expedient for the validity and enforceability of such security rights.
§ 9 Prices, Payment
1. Unless agreed otherwise, in the event thata we make a binding offer (see § 2.1), we shall be bound to the prices stated in our offer for 90 (ninety) days from the date of the offer. The prices set forth in the order confirmation shall govern. Any additional goods and services shall be charged separately.
2. Our prices shall apply “ex-works” plus statutory value added tax as amended, but not including, however, transport packaging and transport insurance. Our invoices shall be payable net (with no deductions) within 10 (ten) days of the invoice date.
3. Notwithstanding provisions of the Customer to the contrary, we may set off payments against older debts owed by the Customer. If costs and interest have already been incurred, we may set off the payment first against the costs, and then against the interest, and finally against the principal. The Customer shall be notified thereof.
4. Payment shall be deemed made onlywhen we can dispose over the relevant amount. Cheques shall be accepted only as conditional payment and shall be deemed actual payment only after they have been redeemed.
5. Should the Customer default in payment,we may charge default interest in an amount 8 (eight) % above the base interest rate. Moreover, we may demand a reasonable fee for written notice letters.
6. Any and all receivables shall be due and payable immediately if the Customer defaults in payment, culpably fails to meet other material obligations under the contract or if we become aware of circumstances that could reduce the Customer’s creditworthiness, in particular, cessation of payments or an application for or commencement of insolvency proceedings. In such cases, we may withhold outstanding deliveries or perform them only against advance payment or the provision of security.
7. The Customer may set off or exercise a right of retention only if the counterclaims are confirmed in a final and binding judgment, or are not disputed. However, the Customer may always exercise a right of retention based on counterclaims under the same contractual relationship.
§ 10 Prohibition on Assignment
The assignment of claims against us to third parties is expressly excluded, unless we give our express advance written consent to such assignment. Where claims that generally may not be assigned pursuant to § 6 paragraph 7 of these Standard Terms and Conditions are not involved, such consent shall be granted if the Customer provides proof of material concerns that outweigh our interests in maintaining the prohibition on assignment.
§ 11 Confidentiality, Restriction on Use
The Customer agrees to keep confidential and not disclose to third parties any and all commercial and/or technical information and knowledge (know-how) of which it becomes aware or that is transmitted by us in connection with our deliveries or performance of the (specific) contract, and that is either marked “confidential” or (orally) identified as such or that, given its nature (taking into account the legal concept of business and trade secrets), must be regarded as confidential, unless it enters the public domain or becomes easily accessible as a result of circumstances other than a contractual violation by the Customer. Moreover, the Customer shall not use the aforementioned information/knowledge for purposes outside the specific contract, in particular, shall not use such information/knowledge for the manufacture, use or distribution of products that compete with the specific contract products. The Customer shall impose equivalent obligations upon its employees and other persons who come into contact with the aforementioned information/ knowledge in accordance with the provisions of the specific contract. The foregoing duties shall also survive termination or expiry of the specific contract.
§ 12 Miscellaneous
1. These Standard Terms and Conditions of Sale and Delivery and the entire legal relations between BESTAIR and the Customer shall be governed by the laws of the Federal Republic of Germany. Application of the United Nations Convention on the International Sale of Goods (“CISG”) or any other bilateral or multilateral treaties concerning the harmonisation of international sale of goods shall be excluded.
2. Place of performance for deliveries is our respective delivery site. Place of performance for payment is our company’s registered office.
3. Forum for any and all disputes under or in connection with these Standard Purchasing Terms and Conditions and under the entire legal relations between BESTAIR and the Supplier is Mannheim, provided the Supplier is a qualified merchant. BESTAIR may, however, also bring proceedings against the Supplierat its general forum.
4. Should one or more of these Purchasing Terms and Conditions or provisions in legal transactions between BESTAIR and the Supplier be or become invalid, the validity of the remaining provisions shall remain unaffected thereby.
Mannheim, June 10 th, 2016