General Terms and Conditions of Advanced Realtime Tracking GmbH

The following document is a translation of the original German General Terms and Conditions. It is provided for information purposes only. The German version of the General Terms and Conditions shall be exclusively binding.

§ 1 Scope

All offers, supplies, services and conclusions of contracts of Advanced Realtime Tracking GmbH (hereinafter referred to as “A.R.T.”) will exclusively take place according to the following conditions, even if in individual cases they are not especially mentioned. Divergent customer conditions, especially in General Terms and conditions for the purchase of goods will not apply, even if they are not explicitly opposed to.
These General Terms and Conditions will not apply to conclusions of contracts with consumers (consumer contracts).

§ 2 Offer and conclusion of contract, working documents

All offers are not binding.
A contract shall be effected only upon formal order confirmation by A.R.T.. An order shall be regarded as confirmed if without formal order confirmation the delivery is executed. A.R.T. shall be entitled to make the confirmation of an order contingent upon an advance payment in the amount of up to the total price.
All the rights for and from the working documents and the necessary tools for the performance of the order belong exclusively to A.R.T.. The customer has no right to claim the delivery of working documents and tools.
A.R.T reserves the right to modify the contract products if and to the extent that such modifications do not affect the functionality of the contract product and may be regarded as necessary for technical reasons or for model innovation purposes.

§ 3 Prices

Prices mentioned in the order confirmation are applicable, in the absence of a formal order confirmation the prices mentioned in the offer of A.R.T. shall apply. Prices are - if not agreed otherwise - ex warehouse A.R.T., in Euro, plus packing, shipment, insurance and value added tax required by law at the delivery date.

§ 4 Payment conditions, default of payment, set off

Payments are due within fourteen (14) days as of date of invoice without deduction. After the payment term has expired the customer defaults in payment. No reminder is required. Payment terms are met if A.R.T. can dispose freely of the payment (credited to A.R.T.'s account, cash cheques).
If the customer fails to pay on due date, notwithstanding further rights, interests of eight per cent p.a. on top of the basic interest rate have to be paid to A.R.T. A.R.T. is entitled to charge Euro 2,50 for any reminder in case of default in payment.
If the customer does not meet his payment obligations or if A.R.T. is entitled to the right to retain performance as in § 321 paragraph 1 BGB (German Civil Code), all accounts receivable of A.R.T. against the customer will fall due immediately, even if cheques and commercial bills with a later maturity have been accepted.
The set-off against accounts receivable is only allowed with legally assessed, undisputed or mature demands of the customer. This applies respectively for retaining liens.

§ 5 Delivery- and service time

A.R.T. is entitled to partial delivery and performance.
Unless otherwise agreed formally, delivery-, service- and performance times are not binding for A.R.T. Delivery periods shall commence as of the dispatch date of the order confirmation, but nor prior the receipt of all necessary information, documents and parts which the customer has to deliver.
In the event that the parties have agreed on delivery on call the customer has to determine delivery- and performance times in such a way, that A.R.T. has enough time and opportunity, to make the corresponding dispositions. If the customer – for whatever legal reason – does not meet his obligation to call deliveries and services in a proper way, A.R.T. is entitled to determine the performance time and lots by itself or to cancel the contract and claim damages instead of performance.
A binding agreed term is considered as met, if the contract product is handed over to a person in charge executing the transport within the agreed delivery period, at the latest however when shipment is announced, in the event that delivery is delayed due to reasons beyond the control of A.R.T..
The conclusion of the contract shall be subject to the reservation that A.R.T. receives the correct supplies on time from the subcontractors. A.R.T. is especially entitled to cancel the contract, if A.R.T. has concluded a congruent covering transaction and has been let down by its subcontractor. In this case the customer has to be informed immediately on the unavailability of performance. In this case customer's claims for damages are excluded.
Any unforeseeable events and obstacles beyond the control of A.R.T. which delay the supply or performance completely or partially, especially strikes, lock-outs, unpredictable interruption of operations in the business of A.R.T. or of subcontracting companies, inevitable scarcity of raw material, destruction of services already rendered through third parties or through events of force majeure (i.e. fire, floods, earth quakes) or circumstances and obstacles for which the customer is responsible for, entitle A.R.T., after informing the customer about the obstacle, to prolong the delivery and service times for the time the obstacle lasts. If the obstacle lasts longer than three months, the customer shall be entitled to resign from the contract, if a grace period of at least three weeks granted by the customer in writing has expired without results. Further rights of the customer, especially on damages are excluded.
Even if the agreed delivery and service times can be determined or calculated according to a calendar, default of performance of A.R.T. requires a formal reminder by the customer.

§ 6 Shipping and passing of the risks

Unless otherwise agreed, deliveries shall take place on the account of the customer.
The risk of accidental destruction or accidental deterioration of the contract product passes on to the customer, as soon as the contract product has been handed over to the person in charge executing the transport, or leaves A.R.T.'s warehouse for the purpose of shipment. This applies also in case of freight paid delivery.
If the customer does not accept the offered, conforming contract product or if shipment or delivery is delayed upon request of the customer, the risk of accidental destruction or accidental deterioration of the contract product shall pass on to the customer upon the information that the contract product is ready for delivery. The customer has to bear any storage costs.

§ 7 Reservation of title

Until satisfaction of all accounts receivable and all claims, including the settlement of all outstanding current account balances and any claims pertaining to exemption from liability risks assumed at the request of the customer, held by A.R.T. against the customer – for whatever legal reasons –, A.R.T. is granted the following securities, which will be released upon request of the customer but at A.R.T.’s discretion if, and to the extent to which their value exceeds the claims against the customer by more than 20 % for more than just a temporary period.
All contracts products delivered (hereafter called „reserved-title goods“) remain A.R.T.'s property. Processing and modifications take place for A.R.T. as manufacturer, however any obligations being occured on the part of A.R.T.. If the reserved-title goods by processing or otherwise are inseparably connected or mixed with other movables not belonging to A.R.T., A.R.T. becomes co-owner of the new built object.
The customer is authorized to sell the reserved-title goods in the normal course of business, as long as he meets his payment obligations, is not in default towards A.R.T. and no application for the opening of insolvency proceedings has been made. The customer is not authorized to dispose of the reserved-title goods in any other manner (transfer of ownership by way of security, pledging etc.). Claims arising from resale of the reserved-title goods or on other legal grounds (insurance benefits, debts founded on tort etc.), including all outstanding amounts from current account, herewith already are assigned to A.R.T. as a security (if A.R.T. is only co-owner of the reserved goods: proportionally in relation to its share of ownership). A.R.T. herewith accepts the assignment. The customer is entitled to collect the claims until such power is revoked. A.R.T. is entitled to revoke this power, if the customer does not meet his payment obligations. In this case the customer undertakes to give A.R.T. notification of the assigned debts, provide A.R.T. with all necessary information for the collection of the debts and to notify debtors of the assignment.
The customer shall store the reserved-title goods for A.R.T. free of charge. He has to keep the reserved-title goods in orderly state and shall insure them at his own expense and to the extent to which a prudent businessman would do so. In the event of seizure by way of court order or in the event of other attachments by third parties, the customer shall notify A.R.T. without delay, oppose the attachment and refer to the co-ownership of A.R.T.. The costs of averting the attachment shall be borne by the customer.
If the customer acts in breach of the contract, especially if he comes in default, A.R.T. after setting a grace period is entitled to resign from contract, to demand the immediate return of the reserved-title goods, to enter the business premises of the customer, to repossess the reserved-title goods and to claim the assignment of the customer’s claim for the return, if so. The customer has no right of retention.

§ 8 Warranty

The state, condition and quality of the contract products are finally shown in A.R.T.'s product description. Statements in advertising and boosting, that only have advertising content, shall not be regarded as statements to state, conditions and qualities.
Faulty installation instructions only represent a defect if they prevent the orderly installation of the contract products.
In order to preserve warranty rights, wrong deliveries, differing quantities and obvious defects have to be notified formally without undue delay, at the latest one week after the delivery of the objects. Non-obvious defects have to be notified formally and immediately after being discovered.
Contract Products rejected have to be returned freight paid to the place of destination determined by A.R.T. for inspection and in order to eliminate the defects, if so. In case the notice of defect is justified, transport costs will be reimbursed to the customer to the extent they are necessary.
A.R.T. shall be entitled to eliminate defects on contract products either by removal of the defect or by supply of a product free of defects (subsequent performance). If the subsequent performance as in § 440 clause 2 BGB fails, the customer may choose to claim a reduction of the remuneration (reduction) or resign from the contract. If defects are insignificant resignation shall be excluded.
All warranty claims are barred by the statute of limitations in two year's time as of date of delivery.
Unless otherwise expressly agreed, A.R.T. does not assume the risk of procuring goods and does not grant guarantees in the meaning of law.

§ 9 Neglect of duty beyond warranty

The resignation of the customer due to performance not rendered or not rendered in conformity with the contract is excluded, if the neglect of duty is insignificant and/or A.R.T. is not responsible for it.
The resignation from contract due to a breach of a collateral duty in terms of § 241 paragraph 2 BGB (German Civil Code) only is permitted if A.R.T. can be charged of intent or gross negligence and if it is unreason-able to require from the customer to adhere to the contract.
Customer's claims based on neglect of duty beyond warranty are barred by the statute of limitations in one year's time as of the date the customer has obtained knowledge or – without gross negligence – ought reasonably to have had knowledge of the person liable and of the circumstances which constitute the claim, at the latest, however, five years after the commitment of the act or the neglect of duty, unless shorter limitation periods apply pursuant to law.

§ 10 General limitation of liabilities

The indemnification of damages instead of performance only can be asserted if the customer has previously and formally fixed a period of time for subsequent performance to A.R.T., threatening to claim damage instead of performance and/or resign from the contract after its expiration, and such period of time expires without results. The right of the customer to require performance forfeits upon expiration of such period of time, at the latest however if and as soon as the customer claims damage instead of performance.
The indemnification of damages instead of performance due to a breach of a collateral duty in terms of § 241 paragraph 2 BGB (German Civil Code) only can be asserted if the preconditions of the right of withdrawal as in preceding § 9 subparagraph 2 are complied with.
In the event that A.R.T. is liable for the indemnification of damages or the refund of useless expenses, for whatever legal reason, A.R.T. is liable as follows:
- for damages to life, body or health if A.R.T. s responsible for the neglect of duty,
- for willful and at least grossly negligent behavior of the managers and directors of A.R.T. as well as for serious misconduct in the organization,
- in the event of a breach of essential contractual obligations and in the event of at least grossly negligent behavior of simple agents, limited to the amount as follows: compensation for damages may not exceed the loss occurred and the lost profit, which upon conclusion of contract, taking into consideration the circumstances which A.R.T. knew or must have known, was foreseeable as a possible consequence of the breach of contract.
- in any event of preceeding c) any claims for the refund of useless expenses are excluded, if and as far as such expenses do not serve commercial purposes and/or for expenses on other business, which the customer has done in view of the contractual relationship to A.R.T..
Personal liability of A.R.T.'s managers and employees of A.R.T. who are engaged in performing the contractual obligations is excluded.
Any other claims for damages against A.R.T. are excluded.

§ 11 Formal requirements

To comply with the requirement of formal notice in the terms of these General Terms it is necessary and sufficient if the respective notice is transmitted in writing, by fax or electronically.

§ 12 Software and data

Unless otherwise agreed formally, software will be provided in form of object code. Die re-translation of delivered software in the source code, in particular by means of debugging-programs is not allowed.
Software, documentations and data material are appropriated to the internal use of the costumer. Copies may only be made for the purpose of safeguard, storage or the search of program mistakes and shall include the copyright sign of the original copy.

§ 13 Final provisions

German law shall apply. The United Nation Convention on Contracts for the International Sale of Goods (CISG) is excluded.
Place of performance is Weilheim.
Munich is the place of jurisdiction for all litigation – including commercial bill or cheque claims - with businessmen, legal persons under public law and those with public law assets. A.R.T. is however entitled to sue the customer at its general place of jurisdiction.
If individual provisions should be invalid, this shall not affect the validity of the remaining provisions. Invalid provisions shall be replaced by provisions, which come closest to the purpose intended.

02/2005

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