BERNER INTERNATIONAL GMBH
(hereinafter "BERNER INTERNATIONAL")
Mühlenkamp 6
D-25337 Elmshorn
Germany

 

1. General Provisions

1.1.
These general terms and conditions apply to all deliveries and other services provided by us. They are an integral part of all quotes and acceptances of contract and apply exclusively, provided that no individual provisions have been agreed.The General Terms and Conditions shall apply to transactions with any entrepreneurs, companies, public entities or public special funds. The performance of any construction work shall, in addition, be subject to the provisions of the Standard Terms of Contracts on Construction Services, Part B (Verdingungsordnung für Bauleistungen (VOB), Teil B) as last amended.

1.2.
We do not accept any terms and conditions set forth by the Customer that conflict with or differ from our terms and conditions. Such terms and conditions shall not become an integral part of the contract even if we perform the delivery or service unconditionally in full knowledge of the Customer’s conflicting or differing terms and conditions. Even if the Customer has previously objected to our terms and conditions, Customer shall be deemed to accept them unconditionally at the latest at the time of merchandise receipt.

1.3.
These terms and conditions also apply to all future business transactions with the Customer, even if we do not reiterate the applicability of the terms and conditions of sale.

1.4.
Contractually binding agreements must be made in written form or confirmed in written form.

 

2. Offer and Conclusion of Contract

2.1.
In case of doubt, quotes by us do not constitute legally binding quotes but are deemed to be an invitation to the Customer to make an offer of contract. A contract based on the Customer’s order is formed only after we have confirmed the Customer’s order in written form, have begun with production, or have delivered the merchandise. The Customer waives receipt of our declaration of acceptance. If we give our quote as a legally binding offer, we have the right to revoke such offer until such time as it has been accepted by the customer.

2.2.
Oral agreements do not exist, nor do subsidiary arrangements.

2.3.
Outside the scope of delivery, the property in any estimates of costs, sketches, drawings, performance schedules, functional specifications, technical descriptions and other documents shall remain with BERNER INTERNATIONAL.

Such documents must not be disclosed to any third party. If the conclusion of contract fails, then upon our demand all such documents shall be returned to BERNER INTERNATIONAL.

 

3. Prices, shipping and packaging costs

3.1.
Our prices are understood to be in euros and do not include the statutory VAT which the Customer shall have to pay on top. Unless stated otherwise, shipping costs, insurance, customs duties, and other fees and levies relating to the merchandise shall also be borne by the Customer

3.2.
If have assumed responsibility for the assembly or installation of goods, then, unless otherwise agreed, Customer shall bear all incidental costs incurred in connection therewith, e.g., travel expenses, costs for the transportation of tools and utility costs at the construction site (power, water, etc.).

3.3.
Our prices quoted are based on the circumstances when we give our legally binding declaration of acceptance or offer a steh case may be. In the event of unforeseen cost increases, for example, fluctuations in the rate of exchange, increases in taxes, customs duties, or other public fees, including but not limited to import duties and import costs, as well as significant increases in prices for raw materials, we are entitled to pass the price increase on to the Customer.

3.4.
When assuming responsibility for connection and/or fixture and fitting operations we can only roughly pre-calculate our costs. Should - due to circumstances which we could not foresee (like, in particular, specifics of the Customer’s place) – the actual expenditure exceed the level expected by us, then the Customer shall be obliged to fully remunerate Berner International for all and any additional services it has to render and to fully reimburse Berner International for all and any additional costs of supply.

3.5.
If a price increase pursuant to 3.3 or 3.4 amounts to more than 15 per cent of the initial net price, the Customer shall be entitled to rescind the contract. Notice of such rescission is to be given without undue delay upon receipt of the notification of the price increase by way of registered mail, failing which the notice of rescission shall have no effect. Upon rescission of the contract the Customer has to pay adequate remuneration for all services and goods received from Berner International insofar as a return in kind is infeasible.

 

4. Delivery

4.1.
We are always keen to deliver as soon as possible. Legally binding agreements on delivery periods need to be made in writing. Unless explicitly agreed otherwise they shall only start to run upon conclusion of contract and comprehensive clarification of the technical aspects. Delivery dates refer to the date of shipment.

4.2.
Compliance with delivery periods will be dependent on the Customer’s providing in a timely manner all kinds of co-operation required from him (including in particular the timely provision of all the necessary information, documents, permits and releases) and on the Customer’s timely meeting the payment terms. Where - for reasons outside BERNER INTERNATIONAL’s scope of responsibility - the afore-mentioned preconditions are not fulfilled, the delivery periods will automatically be extended by an adequate extra period.

4.3.
If at any time after the conclusion of the contract, we learn of circumstances causing doubts about the Customer’s liquidity, we shall be entitled to make delivery conditional upon the provision of securities or payment in advance.

4.4.
Our delivery obligation shall be suspended in events of force majeure (being defined as circumstances or incidents which (i) had not been foreseen, (ii) were not caused through any fault of ours, and (iii) could not have been prevented by measures which were to be expected from a diligent businessman in our position; such events including e.g. war, disruptions of operation or traffic, strikes, lock-outs, disruptions of shipment, governmental decrees etc.). Where due to the extent of the suspension a party cannot be expected to adhere to the contract, it shall be entitled to rescind the contract.

4.5.
Our dates of delivery shall be subject to punctual and correct supply to ourselves, provided that we conclude appropriate supply contracts in due course.

4.6.
Provided that it is reasonably acceptable to the Customer, we are allowed to effect delivery in parts.

4.7.
In the event that delivery is delayed through BERNER INTERNATIONAL’s fault, then Customer shall have the right to set a reasonable grace period of – under normal circumstances – at least two weeks.

4.8.
Our liability for damages resulting from default in delivery or impossibility of performance is subject to clause 10.

4.9.
The risk of accidental loss or deterioration of the goods shall pass to the Customer when they are delivered to him, or - in the event that the contract involves the carriage of the goods – when the goods are handed over to the shipping company, freight carrier or other person or entity responsible for the carriage of the goods. Delivery to the Customer shall be deemed to have been effected if and when the Customer defaults in acceptance of the goods.

4.10.
Customer shall notify BERNER IINTERNATIONAL in writing if Customer wishes to insure the goods during shipment. The costs of such insurance shall be borne by Customer.

4.11.
Unless explicitly agreed otherwise we deliver „ex works“. It is the Customers’s sole responsibility to take care of the shipment and the load securing at his own expense.

 

5. Customer’s duty to cooperate, default of acceptance, Customer’s liability for damages

5.1.
The Customer is obligated to perform all acts of cooperation that are contractually defined or constitute a required good faith effort in a timely manner, in particular to obtain the necessary permissions and to procure all necessary information, documents and data and to ensure the timely availability of competent contact persons.

5.2.
We are entitled to set an adequate period for acts of co-operation owed by the Customer and - such period having fruitlessly expired – to rescind the contract.

5.3.
In the event of call-off orders (delivery schedules), the Customer is obligated to make the call-off within the agreed upon call-off periods. If no call-off period has been established, we have the right to set a call-off period for the Customer if the Customer does not make a call-off within three months.

5.4.
If the Customer does not perform its duties to cooperate or does not perform them in accordance with the contract, if the Customer does not make a scheduled call-off, if the merchandise is shipped later than the originally scheduled date of delivery at the behest of the Customer or due to reasons, for which the Customer is responsible, or if the Customer is in default of acceptance due to other circumstances, we have the right to demand compensation of any damages and additional costs we have incurred. During default of acceptance, we are entitled to charge a lump sum for damages in the amount of 0.5% of the invoice amount for each month, commencing a week after notification that the merchandise is ready for delivery, however, no more than 5% of the amount of the invoice. The Customer has the right to provide proof that we have suffered no damages or substantially lesser damages. We reserve the right to prove higher damages. Additional rights, including but not limited to the right to withdraw from the contract or to demand compensation for damages instead of performance, are not affected. In such cases, the transfer of risk occurs concurrently with notification that the merchandise is ready for delivery.

5.5.
If the Customer owes compensatory damages in place of performance, we have the right to demand a lump sum for damages in the amount of 15% of the purchase price, to the extent that the Customer does not prove lesser damages. The assertion of higher damages is reserved in accordance with the statutory provisions

 

6. Special provisions regarding assembly and installation operations, maintenance services and repair works.

6.1.
Where we assume responsibility not only for the delivery of goods but also for assembly and/or installation operations and/or maintenance services and/or repair works, the following additional provisions shall apply:

6.2.
The Customer has to fulfil all prerequisites so to put us in a position to carry out our contractual obligations. In particular the Customer has a duty to procure at his own expense suitable premises which are fitted with the necessary technical facilities, including suitable power points. On demand Customer has to provide all necessary information on the location of buried current lines, gas pipes, water pipes or similar conditions as well as on the statics.

6.3.
The Customer is responsible for the safekeeping of data. He is in particular obliged to save prior to the start of any work of ours, especially any installation operations, maintenance services or repair works, all and any data which may be stored on the devices.

6.4.
Cost estimates for repair works are non-binding.

 

7. Payment

7.1.
Our invoices are due for payment immediately. Deductions, such as discounts, postage, shipping, and other fees or costs, shall not be accepted unless explicitly agree otherwise.

7.2.
The Customer shall be deemed automatically in default if the respective outstanding amount is not paid by the agreed upon payment date. If no date has been set, invoices are due for payment immediately, and the Customer shall be deemed in default if the invoice amount has not been posted to our account within 14 days of the due date. Date of posting to our account is material to timeliness of payment. An earlier occurrence of default in accordance with the statutory requirements shall remain unaffected hereby.

7.3.
During payment default, our outstanding accounts shall be subject to default interest in the amount of the average interest rate charged by German banks for outstanding current account credit. The Customer has the right to prove that we have suffered no damages or substantially lesser damages as a result of the payment default. We reserve the right to claim higher damages. The statutory provisions regarding the minimum interest rate shall be unaffected hereby.

7.4.
If the Customer defaults on payment or if, after the contract has been concluded, we become aware of circumstances that call the Customer's creditworthiness into question, for example, the Customer's payment default relating to other outstanding accounts within the scope of our business relationship, suspension of payments by the Customer, or non-payment on a check presented by the Customer, we reserve the right to revoke all agreements regarding payment deferrals and payment due dates, including regarding all other outstanding accounts within the scope of our business relationship and to demand immediate payment on all outstanding accounts, including if we have previously accepted checks. Furthermore, we are entitled to immediately withdraw all drafts, bills of exchange, and checks relating to our business relationship from circulation. Furthermore, we have the right set a reasonable deadline for the Customer to provide for prior or contemporaneous payment or a security deposit. If the Customer does not satisfy this demand, we have the right to withdraw from the contract.

7.5.
BERNER INTERNATIONAL is not obligated to accept bills of exchange or checks. In case of acceptance BERNER INTERNATIONAL reserves the right of final crediting. BERNER INTERNATIONAL determines the usual discount charges which are due immediately.

7.6.
The Customer has the right to make set-off claims or withhold payment only if its counterclaims have been legally established, are uncontested, or have been acknowledged by us. This also applies if the Customer’s counterclaims are based on the same contractual relationship.

 

8. Reservation of title

8.1.
We shall retain ownership of all delivered merchandise until such time as the Customer has fully paid the purchase price and any other existing or future outstanding accounts (made as of the point in time when the contract was concluded) vis-à-vis the Customer (including all unpaid balances on current accounts) resulting from this business relationship. Title of ownership of the merchandise shall be transferred to the Customer automatically as soon as the purchase price has been discharged and there are no outstanding accounts resulting from this business relationship (“Kontokorrentvorbehalt”).

8.2.
The Customer has the right to sell or process the merchandise subject to reservation of title within the scope of proper business operations. This right expires automatically if bankruptcy proceedings are instituted against the Customer’s assets or if the Customer is obligated to file for bankruptcy.

8.3.
In the event of resale of merchandise purchased on credit that is subject to reservation of title, the Customer may sell the merchandise only against adequate security (for example, agreement of the Customer’s own reservation of title, etc.) The Customer may pledge the merchandise or make collateral assignments only with our prior consent in written form.

8.4.
Any adaptation/alteration or processing of merchandise subject to reservation of title by the Customer is always undertaken for us as the processor as defined by Section 950 of the German Civil Code (BGB). If the merchandise is processed, altered, or inseparably commingled or combined with items not belonging to us, we acquire co-ownership of the new object proportionate to the value of the merchandise subject to reservation of title (invoice amount, including VAT) to that of the other processed items at the time of processing, alteration, commingling, or combining. If a commingling or combining with an item belonging to the Customer that is deemed to be the principal chattel is such that the Customer acquires sole title thereto, it is agreed at this point in time that the Customer shall transfer co-ownership of the end product to us that is proportionate to the value of the source material at the time of commingling or combining. We accept the transfer of ownership. The Customer shall hold the resulting sole ownership or co-ownership in custody for us at no charge. The provisions for merchandise subject to reservation of title shall also apply mutatis mutandis to the products resulting from processing, commingling, or combining.

8.5.
The Customer assigns to us as of this point in time by way of security all of its receivables from any resales of merchandise subject to reservation of title equaling the portion that corresponds to the proportional share of the merchandise subject to reservation of title that is owned or co-owned by us. Furthermore, the assignment is limited to a maximum of the amount of the receivable (including VAT) to which we are entitled as against the Customer from our business relationship as of the point in time of the resale, plus a surcharge of 20%. The assignment remains regardless of whether the merchandise subject to reservation of title was resold without processing or commingling or after processing or commingling.

8.6.
The Customer is entitled to collect the receivables assigned to us within the scope of the normal course of business. We are entitled to require the customer to notify his customers of the assignments.

8.7.
If the Customer does not properly meet its payment obligations under the business relationship or if the Customer is specifically but not exclusively in payment default or if the Customer is in violation of its obligations as buyer of merchandise subject to reservation of title or if it becomes clear after conclusion of the contract that our payment claims under the business relationship with the Customer are jeopardized by the Customer’s inability to pay,

a) We are entitled to revoke the resale and downstream processing authorization and/or the authorization to collect receivables and

b) The Customer’s right to possession of the merchandise subject to reservation of title shall expire. Then we shall have the right to enter the Customer’s business premises and to take possession of the merchandise subject to reservation of title at the Customer’s expense. Regardless of the Customer’s payment obligations and other obligations, after warning and expiration of a set reasonable period of time, we shall also have the right to dispose of the merchandise subject to reservation of title as profitably as possible by way of sale on the open market or by way of an auction. After deduction of the costs of disposal that have been incurred, the realized proceeds shall be set off against the Customer’s liabilities. Any surplus shall be paid out to the Customer.

8.8.
In the event of a revocation of the authorization to collect receivables, the Customer shall transmit to us all required information about the receivable and shall, if applicable, provide assistance to us with regard to collection thereof.

8.9.
The Customer is obligated to safely store the items that are owned or co-owned by us and to insure them against theft, breakage, fire, water, and other damages and to provide proof, upon request, that such an insurance has been secured. We can at any time demand that the Customer carry out an inventory of the merchandise delivered by us at its respective place of storage and to mark the merchandise to which we have title. As of this point in time, the Customer assigns any insurance claims and claims against third parties for damages, destruction, theft, or loss of the merchandise to us by way of security. We accept the assignment herewith.

8.10.
As soon as the Customer becomes aware thereof, Customer shall promptly notify us of attachment or seizure by third parties of the merchandise subject to reservation of title and shall provide us with all information and documents necessary for an intervention. The Customer shall be liable for any costs that are incurred for reversal of attachment or seizure, including but not limited to institution of proceedings arising from third-party claims, to the extent that these costs cannot be recovered from the judgment creditor.

 

9. Warranty for Defects

9.1.
We reserve the right to make reasonable Technical Changes and changes in form colour and/or weight. Only such specificiations shall be considered to have been agreed upon as are set forth in BERNER INTERNATIONAL's product specifications. We hereby point out that any illustrations, drawings, pecifications concerning quality, quantity, weight, measure or performance included in our offers or our publications are mere approximations. No public statements, solicitations, promotional statements or advertisements by either BERNER INTERNATIONAL or a third party shall be considered to contain agreed specifications. As a principle BERNER INTERNATIONAL does not give any guarantees ("Garantien") in the legal sense. No statement by BERNER INTERNATIONAL may be seen to constitute a guarantee unless expressly denoted as such.

9.2.
Should a product delivered by us be defective we shall be entitled to remedy the defect, - at our option - either by repair or by replacement of the defective product. In particular, we are entitled to demand that the defective product be returned to us so to put us in a position to try to repair the defect. The necessary cost of transportation fort he sending back of the merchandise shall be borne by us in cases of valid complaints.

9.3.
The Customer can withdraw from the contract or reduce the purchase price only if we have not attempted subsequent performance within a reasonable period that was set or if subsequent performance was impossible, had been refused, was unsuccessful or unreasonable. The period set for subsequent performance must be no less than four weeks provided that this does not conflict with the Customer’s legitimate interests. In case of doubt, if the third attempted subsequent performance was unsuccessful, unsuccessful subsequent performance can be assumed Rights to rescind the contract and damage claims shall not only be subject to the legal preconditions but additionally to the provisions of clause 10.

9.4.
With regard to all work performance by us, including deliverables, the Customer is obligated to promptly examine the merchandise for defects, including quality and quantity deviations. To preserve warranty claims, any complaints concerning the merchandise must be made in written form no later than 10 days after receipt or, in the case of hidden defects, after discovery thereof. Otherwise, the delivery shall be deemed having been executed in accordance with the contract and approved. Remarks on delivery notes are not deemed to be notice of defect. Transport personnel is not authorized to receive notices of defect.

9.5.
The Customer's right to retain payment is limited to an extent which is in reasonable proportion to the defect of the goods.

9.6.
Claims based on defects shall be excluded in cases of unauthorised interference with the goods or incorrect behaviour of the Customer, e.g. if the Customer commits a mistake in starting or running the operation of the goods, disregards maintenance or handling instructions, uses parts from third party suppliers or unauthorized types of operating supplies, unless the Customer demonstrates that the defect has not been caused by such circumstance.

9.7.
The limitation of action for claims based on defects is governed by Clause 11.

9.8.
Should installation instructions provided to Customer contain any errors, then the liability of BERNER INTERNATIONAL shall be limited to the delivery of new installation instructions which are free of errors. Moreover, Customer shall only be entitled to obtain such new installation instructions, if the errors in the installation instructions impede proper installation. The foregoing provisions shall apply, mutatis mutandis, should user instructions provided to Customer contain any errors.

9.9.
If goods are returned to BERNER INTERNATIONAL although they are free of defects, then BERNER INTERNATIONAL shall be under no obligation to accept the goods. If and to the extent that BERNER INTERNATIONAL still accepts returned goods and issues a credit to Customer, a deduction will be made in the amount of the accrued packaging and shipping costs plus an administrative fee in the amount of 10% of the purchase price (at least EUR 10.00). The right of the parties to furnish proof of higher or lower damages shall remain unaffected thereby. If the goods are damaged, then BERNER INTERNATIONAL may deduct an additional appropriate amount from the credit issued to Customer.

9.10.
The obligation of BERNER INTERNATIONAL to keep delivered goods free from industrial property rights and copyrights of third parties (hereinafter "Proprietary Rights") shall be limited to the country in which the goods are delivered. If any third party should assert valid claims against Customer for the infringement of any Proprietary Rights as a result of Customer's use of any goods delivered by BERNER INTERNATIONAL, then, provided that such goods are used by Customer for the contractually contemplated purpose, BERNER INTERNATIONAL shall, at its option and at its own cost, procure an appropriate license from the third party, modify the goods such that they no longer infringe any Proprietary Rights, or replace the goods. Customer shall have no claims under this provision, if the infringement of Proprietary Rights was caused by Customer's product specifications, Customer's use of the goods for a purpose that was unforeseeable for BERNER INTERNATIONAL, or Customer's use of the goods in a modified condition or in combination with any third party products.

9.11.
Customer shall inform BERNER INTERNATIONAL in writing without undue delay of any claims asserted by third parties. Customer must not accept responsibility for any infringement claims. BERNER INTERNATIONAL reserves the exclusive right to defend against any infringement claims and to enter into any settlement negotiations with third parties. In the event that Customer should discontinue use of the goods for mitigation purposes or for other important reasons, Customer shall notify the third party that such discontinue use is not to be construed as acceptance of responsibility for any infringement claim.

9.12.
In cases of faulty performance of services (assembling, installation, or repair work) the Customer is entitled to demand subsequent performance within the statutory provisions. The assertion of additional rights (including the right to substitute performance) is only admissible, once the efforts for subsequent performance have failed. Furthermore, in said cases the preceding clauses - including those on (i) the Customer’s obligation to notify visible as well as detected defects (clause 9.4) and (ii) on the time limitation of claim rights (clause 9.7) - shall apply accordingly.”

 

10. Customer's Rights of rescission and Claims for Damages

10.1.
The right of rescission of the contract shall be governed by the legal provisions subject to the additional proviso that a breach of duty by BERNER INTERNATIONAL other than a defect shall only grant Customer a right to rescind the contract, if BERNER INTERNATIONAL is responsible for such breach.

10.2.
In addition to the other preconditions, liability of BERNER INTERNATIONAL for damages of any kind shall presuppose malicious intent or at least gross negligence. Provided that all other qualifying conditions are met, we are as well liable for damages only if we are guilty of intent or gross negligence. All other claims for damages of any kind on any basis are expressly excluded, e.g. liability for default on negotiation and/or conclusion of contract.

10.3.
Should we become liable for normal negligence pursuant to 10.2 above, then our liability shall be restricted to such damages as - based on the circumstances known by us when the contract was concluded - had to be taken into consideration as a typical scenario.

10.4.
The afore-mentioned exclusions and restrictions of liability apply neither insofar as we have given a guarantee, nor where we are liable under the German Product Liability Act (Produkthaftungsgesetz), nor to damages to life, bodily integrity or health.

10.5.
The afore-mentioned exclusions and restrictions of liability do also apply to our meployees, auxiiliary persons ("Erfüllungsgehilfen") and to any third party somehow involved by us in the implementation of the contract.

 

11. Limitation of Actions

11.1.
The limitation period for claims based on defects is one year.

11.2.
Any other contractual claims of the Customer based on violations of duties shall be subject to a limitation period of one year. This shall, however, not apply to Customer's rights to rescind the contract for violations of duties - other than defects - within our sphere of responsibility.

11.3.
Notwithstanding the preceding provisions, the legal limitation periods shall apply to the following claims of the Customer:

11.3.1
Claims for damages under product liability, claims for damages resulting from a violation of life, body or health, claims for damages resulting from a violation of an essential contractual duty, claims for damages caused by a violation of duty committed in an intentional or grossly negligent way by ourselves or auxiliary persons of ours.

11.3.2
Claims for reimbursement of expenses pursuant to § 478 paragraph 2 BGB.

11.3.3
Claims for fraudulent concealment of a defect.

11.4.
Limitation of our claims against the Customer shall be subject to the legal provisions.

 

12. Notes on Waste Disposal

12.1.
We will not take back the delivered goods when they cease to be used. Having examined the legal situation, we hold the view not to have any waste disposal responsibility under the ElektroG (Electrical and Electronic Equipment Act) - for reasons set out in our leaflet on Directive 2002/95/EC which we will happily provide you immediatly, should you ask for it. At the same time we wish to point out that the delivered goods fall within the scope of special waste disposal regulations as a result of the contamination generated in the intended operation/ use of the goods (reference is made to "Rules for medical goods ElektroG"). We may mention in particular that the Customer will have to comply with the "Directive on the Appropriate Disposal of Waste from Institutions of the Medical Service" - in the currently valid or hereafter amended version - issued by the LAGA (Bund-Länder-Arbeitsgemeinschaft Abfall=joint working group of Federation and States for the Handling of Waste).

12.2.
In any case Customer is obliged to inform itself on its own responsibility about all relevant rules and regulations on the disposal of waste and to carry out the disposal at its own expense in full accordance with all relevant rules and regulations.

12.3.
Should the Customer pass on, in particular transfer in a sale, delivered goods to a thid party, then the Customer must make the third party aware of the applicable rules and regulations on the disposal of waste. Furthermore the Customer must cause the third party to accept its duty to comply with these rules and regulations, otherwise the Customer has to carry out the waste disposal itself in compliance with said rules and regulations.

12.4.
The Customer is obliged to indemnify us - upon our first request - from any claims asserted against us on the grounds of non-compliance with waste disposal provisions.

12.5.
Our rights to have the waste disposal carried out by the Customer and to be indemnified by the Customer from any claims asserted against us on the grounds of non-compliance with waste disposal provisions shall not prescribe before expiration of a two-year period setting which period shall only set in when (i) the respective device has ultimately ceased to be used and (ii) we have received a written notification of this fact by the Customer.

 

13. Final Provisions

13.1.
This contractual relationship is governed solely by the laws of the Federal Republic of Germany, whereby the conflict of law rules and UN Convention on Contracts for the International Sale of Goods (CISG) do not apply.

13.2.
The place of performance for all obligations arising under any agreements between the parties, including these General Terms and Conditions, shall be the location of BERNER INTERNATIONAL's principal place of business. Any disputes arising between the parties shall be heard and resolved by a court of competent jurisdiction at BERNER INTERNATIONAL's principal place of business. BERNER INTERNATIONAL may also file suit in any court of competent jurisdiction at Customer's principal place of business.

13.3.
Should any provisions of the agreement, including these General Terms and Conditions, be or become invalid, whether in whole or in part, then the validity of the remaining provisions shall remain unaffected thereby. Any invalid provision or invalid part of a provision shall be replaced by such valid provision as most closely approximates the economic intent and purpose of the original provision.

Date: 15 March 2012