GTC

General Terms and Conditions of ixes AG for the Sale of Products and Services (Version: August 2006)

CONTENTS:

I. General Provisions
II. Prices, Terms of Payment and Compensation
III. Reservation of Property Rights
IV. Delivery Schedule; Delay
V. Transfer of Risk
VI. Set-up And Assembly
VII. Acceptance of Deliveries
VIII. Flaws
IX. Commercial Patent Rights and Copyrights; Defective Titles
X. Undeliverable Performance; Contract Customization
XI. Other Claims for Damages; Statutory Limitations
XII. Venue Of Jurisdiction And Applicable Law
XIII. Liability Of Contract

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I. GENERAL PROVISIONS

1. The legal relations between Supplier and Purchaser associated with the deliveries and/or services of the Supplier (hereinafter referred as “Deliveries”) are solely governed by the present General Conditions (hereinafter referred as GC). The Purchaser’s general terms and conditions apply, only if the Supplier has expressed his consent in writing. The scope of delivery shall be determined by the congruent mutual written declarations.
2. The Supplier reserves his entire property rights and copyrights pertaining to price quotations, drafts and other documents (hereinafter referred as “Documents”). The Documents are not allowed to be made accessible to third parties without the Supplier’s prior approval. If the contract is not awarded to the Supplier, upon request, the Documents must be returned to the Supplier without undue delay. Terms 1 and 2 are applicable to the Purchaser’s Documents. These may be, however, made accessible to those third parties, to whom the Supplier has rightfully subcontracted Deliveries.
3. The Purchaser has the non-exclusive right to use standard software and firmware, provided that their features remain unchanged, on the agreed equipment. Without explicit agreement, the Purchaser may make one back-up copy of standard software.
4. Partial deliveries are allowed, unless they are unreasonable for the Purchaser to accept them.
5. The term „claims for damages” used in the present GC also comprises claims for disbursement.

II. PRICES, TERMS OF PAYMENT AND COMPENSATION

1. Prices refer to rates for work, in which packaging is excluded, plus value-added tax.
2. Should the Supplier perform the tasks of set-up or assembly, and unless otherwise agreed, the Purchaser shall settle agreed remuneration and all incidental costs incurred, including the costs for traveling, transport as well as allowances.
3. Payments shall be made directly to Supplier.
4. The Purchaser can only request for compensation, under the conditions that those cases are undisputed or legally valid.

III. RESERVATION OF PROPERTY RIGHTS

1. The delivered items (hereinafter referred as “Retained Goods”) remain Supplier‘s property, until the Purchaser has honored and fulfilled all business agreements. So long as the value of all security claims, in which the Supplier is entitled to enjoy, exceeds the insured amount by more than 10%, the Supplier shall free part of corresponding security claims upon Purchaser’s request. The Supplier is entitled to choose the part of claims which is to be relaxed.
2. As the Supplier’s property rights remains valid, the Purchaser is forbidden to take the Retained Goods as mortgage nor transfer the security claims to others. The resale of goods is possible, only if resellers sell the products in the usual business channels, and only if the conditions allow. The conditions refer to the permission for reseller to keep the payments from his clients, or to further transfer the property rights to his clients, provided that he has settled his own payment.
3. The Purchaser shall inform the Supplier forthwith, in case of any seizure, confiscation or third parties’ infringement.
4. As the Purchaser continually fails to fulfill his obligations, particularly in case of delay in payment, Supplier is entitled to withdraw his goods and terminate the contract. The statute about unnecessary deadline remains unaffected. The Purchaser is obliged to return the Retained Goods. By withdrawal, namely, the enforcement of the reservation of Supplier’s property rights or seizure of Retained Goods is construed as the termination of contract, unless the Supplier would have otherwise stated.

IV. DELIVERY SCHEDULE; DELAY

1. The compliance with delivery schedule is subject to Purchaser’s punctual submission of complete Documents, including necessary permits and approvals of plans, his compliance with agreed terms of payment and his fulfillment of other obligations. If these prerequisites are not fulfilled in time, the delivery schedule shall be extended reasonably; under such condition, Supplier is not considered to be responsible for the delay.
2. If non-adherence to delivery schedule is due to unexpected occasions, such as mobilization of troop, war, riot or similar events, like strike or lockout, delivery schedule shall be extended accordingly. The same shall apply, if the Supplier does not receive his own supply timely or properly.
3. If the Supplier’s delivery is behind schedule and, therefore, the Purchaser suffers loss, the Purchaser may claim a compensation. He may claim 0.5 % of the price for every completed week of delay, but no more than 5 % of the price in total, for the part of Deliveries which, due to the delay, could not be put in the intended use.
4. Purchaser‘s claims for damages resulting from delayed Deliveries and in lieu of performance, that exceed the limits specified in No. 3 mentioned above, are excluded. Claims for damages shall not apply, in cases of mandatory liability based on principle, gross negligence, or due to loss of life, body injuries or damage to health. Purchaser can only terminate the contract within the framework of legal provisions. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
5. Upon Supplier’s request, the Purchaser is obliged to clarify within a reasonable period of time, whether, in case of delay, the contract should be terminated or the delivery should be further proceeded.
6. If dispatch or delivery, on Purchaser‘s request, is delayed by more than one month after notification of the readiness for dispatch is given, the Purchaser may be charged, for every additional month commenced, 0.5 % of the Deliveries’ price for storage, but no more than 5 % of the price in total. The involved parties are at liberty to prove if the storage cost incurred is higher or lower.

V. TRANSFER OF RISK

1. Even though the delivery is free on board, the risk shall be transferred to the Purchaser:
   a) when the Deliveries, in which set-up or assembly is excluded, are shipped or picked up. Upon the Purchaser‘s request, the Supplier shall insure the Deliveries against the usual risks of transport at Purchaser‘s expense;
   b) when the Deliveries, in which set-up or assembly is included, on the day of takeover in Purchaser‘s own firm or, if so agreed, after a faultless trial run.
2. The risk shall be transferred to Purchaser, as the dispatch, delivery, the start or performance of set-up or assembly, the takeover in the Purchaser‘s own firm, or the trial run is postponed for reasons beyond Purchaser’s control, or for special reasons, that the Purchaser delay his acceptance of Deliveries.

VI. SET-UP AND ASSEMBLY

Unless otherwise agreed in written form, set-up and assembly are subject to the following provisions:

1. The Purchaser shall cover his costs and shall timely arrange:
   a) all earth, construction and other ancillary work which is outside the Supplier‘s scope, in addition to the necessary skilled and unskilled labor, construction materials and tools,
   b) the necessary equipment and materials for assembly and commissioning, such as scaffolds, lifting equipment, other devices, fuels and lubricants,
   c) energy and water at site including connections, heating and lighting,
   d) suitable dry and lockable rooms on site that is sufficient for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the related personnel, including sanitary facilities in appropriate circumstances. Furthermore, the Purchaser shall take all measures to protect Supplier’s possessions and related personnel on site, as if they were his own possessions and personnel,
   e) necessary protective clothing and devices that are required for specific site.
2. Before the set-up starts, the Purchaser shall have made the necessary information and specifications available, concerning the location of concealed electric power supply lines, gas pipes and water pipes or of similar installations.
3. Prior to assembly or set-up takes place, the necessary materials and equipment for work must be available on the site of the set-up or assembly. Any preparatory work must have accomplished to the extent that the set-up or assembly can be started as agreed and carried out without interruption. The access and site of set-up or assembly must be leveled and cleared.
4. If set-up, assembly, or commissioning is delayed due to the circumstances beyond Supplier’s control, the Purchaser shall bear reasonable costs incurred for waiting time and any additional traveling expenditure of the Supplier or the related personnel.
5. The Purchaser shall weekly attest the duration of work carried out by the installation personnel. The Purchaser shall immediately acknowledge the Supplier about the completion of set-up, assembly or work.
6. On the request of Supplier, after the acceptance of Deliveries is proceeded, the Purchaser shall examine the Deliveries within two weeks. When nothing is reported, the acceptance of Deliveries is deemed to be successful. Acceptance of Deliveries is also deemed to be succeeded, when the Deliveries, after the completion of agreed test phase, if applicable, are used.

VII. ACCEPTANCE OF DELIVERIES

The Purchaser shall not refuse the Deliveries due to minor defects.

VIII. FLAWS

The Supplier is liable for flaws stated as follows:

1. All defective parts or unsatisfactory services shall be, at the Supplier‘s discretion, repaired, replaced or provided free of charge, provided that the defect has already existed by the time of risk transfer.
2. Requests for repair, replacement, termination of contract and Deliveries’ reduction should be made, according to statutory limitations, within 12 months. This time limit shall not apply, when longer time period is prescribed in corresponding German Civil Code (“BGB”), including Section 438 Paragraph 1 No. 2 (Construction and matters related to construction), Section 479 Paragraph 1 (Right to reclaim), and Section 634a Paragraph 1 No. 2 (Defects of construction). The time limit of 12 months shall not apply, in the case of fraudulent concealment of defect or non-compliance with guaranteed quality. The legal provisions regarding suspension of procedure, suspension and recommencement of deadlines shall be unaffected.
3. Purchaser’s notifications of defects should be given in written form without undue delay.
4. In case the notification of defect is given, the Purchaser may withhold a reasonable amount of payment for the defects caused. The Purchaser, however, may withhold payments, only if the notification of defect is justified and incontestable. The Purchaser has no right to withhold payments, when the deadlines for damages’ claims are over. Unjustified notification of defect shall entitle the Supplier to request reimbursement from the Purchaser for the expenditures caused.
5. The Supplier is entitled to have the opportunity to repair or replace the defective goods within a reasonable period of time.
6. If repair or replacement is unsuccessful, the Purchaser can terminate the contract or reduce the remuneration, irrespective of the possible claims for damages stated in No. 10 in this section.
7. No claims for damages stand, as the defect results from insignificant deviations from the agreed quality, minor impairment of usability, natural wear and tear, or damages arising after the transfer of risk. Damages result from mishandling, excessive strain, using unsuitable equipment, unsatisfactory installation, inappropriate foundation, or affected by from external factors, which are not assumed in the contract, or stemmed from non-convertible software errors. Claims, which are attributable to improper modifications or repair carried out by the Purchaser or third parties and the consequences thereof, are also excluded.
8. Purchaser’s claims, regarding to the expenses incurred in the course of supplementary performance, including costs of travel, transport, labor and material, are excluded, unless the expenses are increased, because the Deliveries have been brought to the location other than the Purchaser‘s branch office where they are supposed to be used.
9. The Purchaser‘s right to reclaim the Deliveries corresponding to Section 478 BGB (Reclaim of contractor) is limited to cases, where the Purchaser has not concluded an agreement with his customer exceeding the scope of provisions governing claims for damages. Moreover, the corresponding Section 478 Paragraph 2 BGB is more applicable than above-mentioned No. 8 with regards to the right to reclaim.
10. Purchaser is not entitled to claim for damages based on flaw. This shall not apply, as there is fraudulent concealment of the defects, non-compliance with guaranteed quality, loss of life, body injury, damage to health, violation of freedom and/ or intended or grossly negligent breach of contract on the part of the Supplier. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser. Further Purchaser’s claims other than those stated in this Article VIII, stemmed from flaw, are excluded.

IX. COMMERCIAL PATENT RIGHTS AND COPYRIGHTS; DEFECTIVE TITLES

1. Unless otherwise agreed, the Supplier is obliged to provide the Deliveries only to the country, where the Deliveries take place, without violate third parties’ commercial patent rights and copyrights (hereinafter referred as Trademark). If a third party asserts a justified claim against the Purchaser based on an infringement of Trademark through the Deliveries made by the Supplier, in which the Deliveries are used in conformity with the contract, the Supplier is liable to take Purchaser’s responsibility within particular time period stipulated in Article VIII No. 2 as follows:
   a) The Supplier shall choose whether to acquire, on his own costs, the right to use the Trademark, or to modify the related Deliveries, so that no Trademark is infringed. If this would be impossible for the Supplier to do so under reasonable conditions, the Purchaser is entitled to terminate the contract or to reduce the payment pursuant to the applicable statutory provisions.
   b) The Supplier‘s liability for compensation is governed by Article XI.
   c) The above-mentioned obligations of the Supplier shall apply, only if the Purchaser (i) immediately notifies the Supplier of any claim asserted by the third party in written form, (ii) does not concede the existence of an infringement and (iii) leaves any protective measures and settlement negotiations to the Supplier‘s discretion. If the Purchaser stops using the Deliveries in order to reduce the damage or for other good reasons, he is obliged to inform the third party that no acknowledgement of the alleged infringement may be inferred, since the use of Deliveries has been discontinued.
2. Claims of the Purchaser are excluded, if he is responsible for the Trademark infringement.
3. Claims of the Purchaser are further excluded, if the infringement of Trademark arises from Purchaser’s specifications, the type of use that is not foreseeable by the Supplier, the Deliveries which are modified by the Purchaser, or installation with products that are not provided by the Supplier.
4. In case there is infringement of Trademark pursuant to above-mentioned No. 1 a), which entitles Purchaser to claim for compensation, Article VIII Nos. 4, 5, and 9 shall be applied.
5. As other defective titles exist, the conditions of Article VIII shall be applied.
6. Any other claims of the Purchaser against the Supplier or his agents exceeding those terms described in this Article IX are excluded.

X. UNDELIVERABLE PERFORMANCE; CONTRACT CUSTOMIZATION

1. If the delivery is impossible to be carried out, the Purchaser is entitled to claim damages, unless the Supplier is not responsible for the undeliverable performance. The Purchaser‘s claim for damages is, however, limited to an amount of 10 % of the value corresponding to the part of the Deliveries which, owing to the undeliverable performance, cannot be put to the intended use. This limitation shall not apply, in the case of mandatory liability based on intent, gross negligence, loss of life, body injury or damage to health; this does not imply a change in the burden of proof to the detriment of the Purchaser. The Purchaser‘s right to terminate the contract shall be unaffected.
2. If unforeseeable events in frame of Article IV No. 2 substantially change the economic importance or the contents of the Deliveries or considerably affect Supplier‘s business, the contract shall be customized by taking utmost good faith into account. If contract customization is not economically justifiable, the Supplier shall have the right to terminate the contract. If, after assessing the importance of events, the Supplier intends to exercise his right to terminate the contract, he shall notify the Purchaser without undue delay. This shall also apply, even if an extension of the delivery time has been previously agreed with the Purchaser.

XI. OTHER CLAIMS FOR DAMAGES; STATUTORY LIMITATIONS

1. The Purchaser’s right to claim for damages, that is based on whatever legal reason, is excluded, particularly when the infringement of duties arising from illicit trade.
2. The above term shall not apply, in case there is mandatory liability, for example, based on the German Product Liability Act, in the case of intent, gross negligence, loss of life, body injury or damage to health, or because of breaching part of conditions stated in contract. However, claims for damages arising from the breach of part of conditions stated in contract are limited to the foreseeable damage which is intrinsic to the contract, unless they are caused by intent or gross negligence, result from the liability for loss of life, body injury or damage to health. The above provision does not imply a change in the burden of proof to the detriment of the Purchaser.
3. If the Purchaser is entitled to claim for damages, the statutory limitations pursuant to Article VIII No. 2 will be applied. The same shall apply to the Purchaser‘s claims in connection with actions undertaken to avoid any damage (such as product recall). The legal statutory limitations apply, as the claims for damages are launched according to the German Product Liability Act.

XII. VENUE OF JURISDICTION AND APPLICABLE LAW

1. If the Purchaser is a businessman, Supplier‘s registered location will be taken as the sole venue of jurisdiction for all disputes arising directly or indirectly out of the contractual relations. However, the Supplier is also entitled to launch the lawsuit at Purchaser‘s venue of jurisdiction.
2. Legal relations associated with this contract are governed by German material law. The United Nations Convention on contracts for the International Sale of Goods (CISG) is exempted.

XIII. LIABILITY OF CONTRACT

The rest of terms and conditions of the contract remains valid, even if one of more provisions of this agreement become(s) legally ineffective. This shall not apply, when it would be unreasonable for one of the parties to be obligated to honor the contract.