General delivery conditions

based on the non-binding condition recommendation of the German Electrical and Electronic Manufacturers' Association (ZVEI) e.V.
- As of January 2002 -

I. General provisions

  1. The scope of deliveries or services (hereinafter: Deliveries) shall be determined by the written declarations of both parties. However, the Purchaser's general terms and conditions shall apply only to the extent that the Supplier or service provider (hereinafter: Supplier) has expressly agreed to them in writing.
  2. The Supplier reserves its unrestricted property and copyright exploitation rights to cost estimates, drawings and other documents (hereinafter referred to as "Documents"). The Documents may only be made accessible to third parties with the prior consent of the Supplier and, if the order is not placed with the Supplier, shall be returned to the Supplier without undue delay upon request. Sentences 1 and 2 shall apply mutatis mutandis to documents of the Purchaser; these may, however, be made accessible to third parties to whom the Supplier has permissibly transferred Supplies.
  3. Partial deliveries are permissible.

II. Prices and terms of payment

  1. The prices are ex works excluding packaging plus the applicable statutory value added tax.
  2. If the Supplier has undertaken the installation or assembly and unless otherwise agreed, the Purchaser shall bear, in addition to the agreed remuneration, all necessary ancillary costs such as travel expenses, costs for the transport of tools and personal luggage as well as allowances.
  3. Payments shall be made free Supplier's payment office.
  4. The Purchaser may set off only those claims which are undisputed or have been finally determined by a court of law.

III. Retention of Title, Extended Retention of Title

  1. The items of the Supplies (Retained Goods) shall remain the property of the Supplier until all claims the Supplier has against the Purchaser under the business relationship have been fulfilled. If the value of all security interests to which the Supplier is entitled exceeds the amount of all secured claims by more than 20%, the Supplier shall release a corresponding part of the security interests at the request of the Purchaser.

  2. During the existence of the reservation of title, the Purchaser is prohibited from pledging or transferring ownership by way of security and resale is only permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from its customer or makes the reservation that ownership is not transferred to the customer until the latter has fulfilled its payment obligations in full.

  3. a) If the Purchaser resells Retained Goods, it hereby assigns to the Supplier its future claims against its customers arising from the resale together with all ancillary rights - including any balance claims - by way of security, without any further special declarations being required at a later date. If the reserved goods are resold together with other items without an individual price having been agreed for the reserved goods, the Purchaser shall assign to the Supplier, with priority over the other claims, that part of the total price claim which corresponds to the price of the reserved goods invoiced by the Supplier.
    b) If a justified interest is substantiated, the Purchaser shall provide the Supplier with the information required to assert its rights against the Customer and hand over the necessary documents.
    c) Until revoked, the Purchaser shall be authorized to collect the assigned claims from the resale. In the event of good cause, in particular default of payment, suspension of payment, opening of insolvency proceedings, protest of a bill of exchange or if there are comparable justified indications suggesting the Purchaser's inability to pay, the Supplier shall be entitled to revoke the Purchaser's authorization to collect. In addition, the Supplier may, after prior warning of the disclosure of the assignment by way of security or the realization of the assigned claims, disclose the assignment by way of security, realize the assigned claims and demand the disclosure of the assignment by way of security by the Purchaser to the Customer within a reasonable period of time.

  4. a) The Purchaser shall be permitted to process, transform or combine the Retained Goods with other items. The processing, transformation or combination shall be carried out for the Supplier. The Purchaser shall keep the new item for the Supplier with the due care of a prudent businessman. The processed, transformed or combined item shall be deemed to be goods subject to retention of title.
    b) In the event of processing, transformation or combination with other objects not belonging to the Supplier, the Supplier shall be entitled to co-ownership of the new object in the amount of the share resulting from the ratio of the value of the processed, transformed or combined reserved goods to the value of the other processed goods at the time of processing, transformation or combination. If the Purchaser acquires sole ownership of the new item, the Supplier and the Purchaser agree that the Purchaser shall grant the Supplier co-ownership of the new item created by processing, transformation or combination in proportion to the value of the processed, transformed or combined goods at the time of processing, transformation or combination.
    c) In the event that the new item is sold, the Purchaser hereby assigns to the Supplier by way of security its claim against the Customer arising from the resale, together with all ancillary rights, without any further special declarations being required. However, the assignment shall only apply to the amount corresponding to the value of the processed, transformed or combined reserved goods invoiced to Supplier. The share of the payment assigned to the Supplier shall be satisfied with priority. With regard to the collection authorization and the conditions for its revocation, No. 3. c) shall apply mutatis mutandis.
    d) If the goods subject to retention of title are combined by the Purchaser with real property or movable property, the Purchaser shall also assign to the Supplier by way of security its claim to which it is entitled as remuneration for the combination, including all ancillary rights, in the amount of the ratio of the value of the combined goods subject to retention of title to the other combined goods at the time of combination.

  5. In the event of seizures, confiscations or other dispositions or interventions by third parties, the Purchaser shall notify the Supplier without delay.
  6. In the event of culpable breach of essential contractual obligations by the Purchaser, in particular in the event of default in payment, the Supplier shall be entitled to take back the Retained Goods after issuing a reminder. The Purchaser shall be obliged to surrender the goods. The taking back or the assertion of the retention of title or the seizure of the delivery item by the Supplier shall not constitute a rescission of the contract, unless the Supplier has expressly declared such rescission. After prior warning, the Supplier shall be entitled to realize the repossessed goods subject to retention of title and to satisfy its claims from the proceeds thereof, taking into account the outstanding claims.

IV. Time limits for deliveries; delay

  1. The observance of time limits for deliveries shall be subject to the timely receipt of all documents to be provided by the Purchaser, necessary approvals and releases, in particular of plans, as well as the observance of the agreed terms of payment and other obligations by the Purchaser. If these prerequisites are not fulfilled in time, the deadlines shall be extended accordingly; this shall not apply if the Supplier is responsible for the delay.
  2. If non-compliance with the deadlines is due to force majeure, e.g. mobilization, war, riot or similar events, e.g. strike, lockout, the deadlines shall be extended accordingly. deadlines shall be extended accordingly.
  3. If the Supplier is in default after having been granted a reasonable period of grace, the Purchaser may - provided that it can credibly demonstrate that it has suffered a loss as a result thereof - claim compensation of 0.5% for each full week of default, but in no case more than a total of 3% of the price of that part of the Supplies which could not be put to the intended use because of the default.
  4. The Purchaser's claims for damages due to delayed Supplies as well as claims for damages in lieu of performance exceeding the limits specified in Clause 3 above shall be excluded in all cases of delayed Supplies, even upon expiry of a time set to the Supplier to effect the Supplies. This shall not apply in cases of mandatory liability based on intent, gross negligence or injury to life, body or health. The Purchaser may withdraw from the contract within the scope of the statutory provisions only if the Supplier is responsible for the delay in delivery. A change in the burden of proof to the detriment of the Purchaser is not associated with the above provisions.
  5. At the Supplier's request, the Purchaser shall declare within a reasonable period of time whether it withdraws from the contract due to the delay in delivery or insists on delivery.
  6. If dispatch or delivery is delayed at the request of the Purchaser by more than one month after notification of readiness for dispatch, the Purchaser may be charged storage costs of 0.5% of the price of the items of the Supplies for each month commenced, but in no case more than a total of 5%. The contracting parties shall be free to prove higher or lower storage costs.

V. Transfer of risk

  1. The risk shall pass to the Purchaser as follows, even in the case of carriage paid delivery:
    a) in the case of deliveries without installation or assembly, when they have been brought for dispatch or collected. At the Purchaser's request and expense, the Supplier shall insure the Supplies against the usual risks of transport;
    b) in the case of Supplies with installation or erection, on the day of taking over in the Supplier's own works.
  2. If the dispatch, delivery, commencement, performance of installation or assembly, acceptance in the Purchaser's own works is delayed for reasons for which the Purchaser is responsible, or if the Purchaser is in default of acceptance for other reasons, the risk shall pass to the Purchaser.

VI. Installation and assembly

Unless otherwise agreed in writing, the following provisions shall apply to installation and assembly:

  1. The purchaser has to take over and provide in time at his own expense:
    a) all earthwork, construction work and other ancillary work not related to the trade, including the skilled and unskilled labor, building materials and tools required for this purpose,
    b) the commodities and materials required for assembly and commissioning, such as scaffolding, lifting equipment and other devices, fuels and lubricants,
    c) energy and water at the point of use, including connections, heating and lighting,
    d) sufficiently large, suitable, dry and lockable rooms at the place of assembly for the storage of machine parts, apparatus, materials, tools, etc., and adequate working and recreation rooms for the assembly personnel, including sanitary facilities appropriate to the circumstances; furthermore, the Purchaser shall take the same measures to protect the property of the Supplier and the assembly personnel at the site as it would take to protect its own property,
    e) protective clothing and protective devices required as a result of special circumstances at the assembly site.
  2. Prior to the start of the installation work, the Purchaser shall provide the necessary information on the location of concealed electricity, gas, water lines or similar installations as well as the required structural data without being requested to do so.
  3. Prior to the start of assembly or erection, the materials and objects required for the commencement of work must be available at the assembly or erection site and all preparatory work must have progressed to such an extent that assembly or erection can be commenced as agreed and carried out without interruption. Access roads and the installation or assembly site must be leveled and cleared.
  4. If assembly, erection or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall bear the reasonable costs incurred for idle times and any additional travelling of the Supplier or the erection personnel.
  5. Upon request, the Purchaser shall immediately certify to the Supplier on a weekly basis the duration of the working time of the installation personnel as well as the completion of the installation, assembly or commissioning.
  6. If the Supplier demands acceptance of the delivery after completion, the Purchaser shall carry this out within one week. If this does not occur, acceptance shall be deemed to have taken place. Acceptance shall likewise be deemed to have been effected if the Supplies have been put to use, if necessary after completion of an agreed test phase.

VII. Receipt

The Purchaser may not refuse to accept deliveries due to insignificant defects.

VIII. Material defects

The supplier is liable for material defects as follows:

  1. All parts or services which show a material defect within the limitation period shall, at the discretion of the Supplier, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of the passing of risk.
  2. Claims for material defects shall become statute-barred after 6 months in single-shift operation. In case of multi-shift operation, the period of limitation shall be shortened accordingly. This shall not apply insofar as longer periods are prescribed by law in accordance with § 438 Para. 1 No. 2 (buildings and items for. buildings), § 479 Para. 1 (right of recourse) and § 634 a Para. 1 No. 2 (building defects) of the German Civil Code (BGB) as well as in cases of injury to life, limb or health, in the event of a wilful or grossly negligent breach of duty on the part of the Supplier and in the event of fraudulent concealment of a defect. The statutory provisions on suspension of expiry, suspension and recommencement of the periods shall remain unaffected.
  3. The Purchaser shall immediately notify the Supplier in writing of any material defects.
  4. In the event of notices of defects, payments by the Purchaser may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The Purchaser may withhold payments only if a notice of defect is asserted about which there can be no doubt as to its justification. If the notice of defects is unjustified, the Supplier shall be entitled to demand reimbursement from the Purchaser of the expenses incurred by it.
  5. First of all, the Supplier shall be given the opportunity to remedy the defect within a reasonable period of time.
  6. If the subsequent performance fails, the Purchaser may - without prejudice to any claims for damages pursuant to Section XI - rescind the contract or reduce the remuneration.
  7. There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, of only minor impairment of usefulness, of natural wear and tear or damage arising after the passing of risk from faulty or negligent handling, excessive strain, unsuitable equipment or from particular external influences not assumed under the contract. If the purchaser or third parties carry out improper modifications or repair work, there shall also be no claims for defects for these and the resulting consequences.
  8. The Purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance, including costs of travel, transport, labor, and material, to the extent that expenses are increased because the subject-matter of the Supplies has subsequently been brought to another location than the Purchaser's branch office, unless doing so complies with the normal use of the Supplies.
  9. The Purchaser's right of recourse against the Supplier pursuant to Sec. 478 BGB (recourse of the entrepreneur) shall only exist to the extent that the Purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on Defects. Furthermore, Clause 8 shall apply mutatis mutandis to the scope of the Purchaser's right of recourse against the Supplier pursuant to Sec. 478 para. 2 BGB.
  10. For claims for damages, Section XI (Other Claims for Damages) shall apply. Further claims or claims other than those regulated in this Section VIII by the Purchaser against the Supplier and its vicarious agents due to a material defect shall be excluded.

IX. Industrial property rights and copyrights; defects of title

  1. Unless otherwise agreed, the Supplier shall provide the Supplies free from third parties' industrial property rights and copyrights (hereinafter referred to as IPR) only in the country of the place of delivery. If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR by the Supplies made by the Supplier and used in conformity with the contract, the Supplier shall be liable to the Purchaser within the period stipulated in Clause VIII No. 2 as follows:
    a) The Supplier shall, at its option and expense, either obtain a right of use for the Supplies concerned, modify them so that the IPR is not infringed or replace them. If this is not possible for the Supplier under reasonable conditions, the Purchaser shall be entitled to the statutory rights of rescission or reduction.
    b) The Supplier's obligation to pay damages shall be governed by Section XI.
    c) The aforementioned obligations of the Supplier shall only exist insofar as the Purchaser immediately notifies the Supplier in writing of the claims asserted by the third party, does not acknowledge an infringement and all defensive measures and settlement negotiations are reserved for the Supplier. If the Purchaser discontinues the use of the Supplies in order to minimize the damage or for other good reason, it shall be obliged to notify the third party that such discontinuation of use does not constitute an acknowledgement of an infringement of the IPR.
  2. Claims of the purchaser are excluded insofar as he is responsible for the infringement of property rights.
  3. Claims of the Purchaser shall also be excluded if the infringement of the IPR is caused by specifications made by the Purchaser, by an application not foreseeable by the Supplier or by the Supplies being modified by the Purchaser or being used together with products not provided by the Supplier.
  4. In the event of infringements of industrial property rights, the provisions of Section VIII Nos. 4, 5 and 9 shall apply mutatis mutandis to the claims of the Purchaser governed by No. 1 letter a above.
  5. In the event of other defects of title, the provisions of Section VIII shall apply accordingly.
  6. Further claims of the Purchaser against the Supplier and its agents or any claims other than those provided for in this Section IX based on a defect in title shall be excluded.

X. Impossibility; adjustment of contract

  1. If delivery is impossible, the Purchaser shall be entitled to claim damages, unless the Supplier is not responsible for the impossibility. However, the Purchaser's claim for damages shall be limited to 10% of the value of that part of the Supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in cases of mandatory liability based on intent, gross negligence or injury to life, body or health; this does not imply a change in the burden of proof to the detriment of the Purchaser. The right of the purchaser to withdraw from the contract remains unaffected.
  2. If unforeseeable events within the meaning of Section IV No. 2 substantially change the economic importance or the contents of the Supplies or considerably affect the Supplier's business, the contract shall be adapted taking into account the principles of reasonableness and good faith. If this is not economically justifiable, the Supplier shall have the right to withdraw from the contract. If the Supplier intends to exercise this right of rescission, it shall notify the Purchaser thereof without undue delay after having realized the consequences of the event, even if an extension of the delivery period had initially been agreed with the Purchaser.

XI. Other claims for damages

  1. Claims for damages and reimbursement of expenses of the Purchaser (hereinafter referred to as "Claims for Damages"), irrespective of their legal basis, in particular due to breach of duties arising from the contractual obligation and from tort, shall be excluded.
  2. This shall not apply in cases of mandatory liability, e.g. under the Product Liability Act, in cases of intent, gross negligence, injury to life, body or health, or breach of a condition which goes to the root of the contract. However, the claim for damages for breach of material contractual obligations shall be limited to the foreseeable damage typical for the contract, unless caused by intent or gross negligence or based on liability for injury to life, body or health. A change of the burden of proof to the disadvantage of the purchaser is not connected with the above regulations.
  3. To the extent that the Purchaser is entitled to claims for damages under this Section XI, such claims shall become time-barred upon expiry of the limitation period applicable to claims for material defects pursuant to Section VIII No. 2. In the case of claims for damages under the Product Liability Act, the statutory limitation provisions shall apply.

XII. Jurisdiction and applicable law

  1. If the Purchaser is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the Supplier's place of business. However, the Supplier shall also be entitled to bring an action at the Purchaser's place of business.
  2. The legal relations in connection with this contract shall be governed by German substantive law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

XIII. Binding nature of the contract

The contract shall remain binding in its remaining parts even if individual provisions are legally invalid. This shall not apply if adherence to the contract would represent an unreasonable hardship for one party.

Terms and conditions of purchase

The following terms and conditions of purchase shall apply exclusively to our orders, even in the event that the supplier makes no reference to them in its order confirmation or only refers to its own terms and conditions of delivery and sale.

Order acceptance:

Acceptance of the order by the supplier must be confirmed within 8 days at the latest, calculated from the date of the order.
Deviations from the order must be expressly highlighted and require our written acknowledgement. If no confirmation or statement is received within 8 days, we shall consider the order to have been accepted in full. Orders placed verbally are invalid without express written confirmation.

Prices:

The order prices are fixed prices.
They are free domicile including packaging, unless otherwise agreed. For the calculation of metal surcharges, the date of our order applies.

Delivery time:

Subsequent price and quantity changes shall only be recognized if they have been confirmed by us separately and in writing! The orders placed by us are to be regarded as fixed transactions within the meaning of the Commercial Code, insofar as specific delivery deadlines have been agreed.
The agreed delivery dates shall be deemed binding and must be complied with without fail; earlier deliveries shall only be permitted by mutual agreement. Partial deliveries are not permitted unless they have been expressly agreed. In the event of a delay in delivery, we reserve the right - without prejudice to the rights to which we are entitled by law - to cancel the transaction even without granting a grace period. In any case, as soon as the supplier realizes that it is impossible for him to deliver on time, he shall notify us thereof without delay, stating the reasons and the expected duration of the delay.
The supplier shall fully indemnify and hold us harmless for any damages resulting from a delay in delivery.

Shipping instructions:

In principle, the following shipping address applies:
ampac GmbH, Bahnstraße 65, 42859 Remscheid.
The contractor is liable for the consequences of incorrect declaration and tariff regulations. Shipments charged with cash on delivery, cash advances etc. will only be accepted by us after prior agreement.
We expressly reserve the right to issue special shipping instructions. Costs arising from non-compliance shall be borne by the supplier.

Takeover:

Unless otherwise agreed, the goods are accepted at the Bahnstraße plant. Acceptance times at our goods receiving department are: Monday - Thursday 8.00 - 16.00 o'clock and Friday 8.00 - 14.00 o'clock.
Confirmation of receipt of goods or invoices already paid do not constitute conclusive acknowledgement of proper delivery.

Warranty:

The supplier assumes full warranty for flawless material, flawless construction and execution. We reserve the right to provide goods that do not meet our requirements or to demand fulfillment of the warranty obligation and to demand free exchange at the point of consumption or compensation for damages.

Guarantee:

Unless otherwise agreed, the warranty shall extend for a period of two (2) years. Our payment, whether partial payment or final payment, shall in no way affect the warranties assumed; in particular, any payment already made shall not be deemed to be confirmation of final acceptance.
Our right of complaint shall therefore remain in full force and effect.

Notice of Defects:

We expressly reserve the right to demand rectification for obvious defects within 4 weeks of discovery. In the case of latent defects which are only discovered when the goods are used as intended, the supplier shall be liable for the defects and the resulting damage even after expiry of this period.
Depending on the determination of defects, we shall have the right either to return the goods or to demand a price reduction or to demand an improvement within a reasonable period of time. If the supplier is not willing or able to improve within a reasonable period of time, we may carry out the improvement or have it carried out at his expense.

Payment:

This takes place (proper acceptance of the goods and correctness of the invoice presupposed and if not differently agreed upon) after our choice:

30 days net - or
14 days with 3 % discount

In the event of late invoicing, from the date of receipt of the invoice. The assignment of claims arising from deliveries and services to us require our prior consent.

Execution Documents:

Models, drawings, samples or other documents remain our property and must be returned immediately after delivery of the order. The use for third parties is not permitted.

Property right:

By accepting the order, the contractor expressly declares that he will indemnify us against any infringement of existing industrial property rights, patents, etc. by third parties. third parties and indemnifies and holds us harmless.

Retention of Title:

Retentions of title by the supplier are not recognized by us.

Deviating conditions:

Deviating or supplementary terms and conditions shall only be binding for us if we expressly confirm them; even then, they shall only apply to the respective agreed transaction.

General:

Any queries are to be directed exclusively to our address.
We request that you quote the complete order number in all documents relating to this order, such as dispatch bills, delivery bills, waybills, invoices, correspondence, telexes, etc.

Place of performance:

The place of performance is Remscheid. The place of jurisdiction for deliveries and payments shall be the court having subject-matter jurisdiction for Remscheid.
The law of the Federal Republic of Germany shall apply exclusively. The Hague Purchasing Law and the Vienna UNICTRAL Purchasing Law are expressly excluded. Their application is only given in case of express written agreement.

Accounting:

Invoices for deliveries of goods which the supplier carries out ahead of schedule shall only become due for payment from the week of delivery prescribed by us. Invoices must be issued in duplicate immediately after delivery of the goods. Invoices which do not correspond to our specifications will be returned unprocessed. In this case, the invoices shall be deemed not to have been issued until they are received again. Invoices and also order confirmations must not be enclosed with the consignments as a matter of principle, but must be sent to us by separate mail. Copies of commercial invoices for foreign shipments are excepted from this rule. If the contracting party uses a third party to fulfill its obligation, either as a subcontractor or on behalf of the contracting party in its own name and for its own account to perform the agreed service (supplier), the contracting party acknowledges that our payment to the supplier in respect of the contract concluded with it shall be made with debt-discharging effect.

The supplier's invoice or invoice shall contain the following information:
Name of the contracting party and its address
Date and number of the order
Date and number of the order confirmation
Customs clearance of the goods shall be assumed only if the delivery documents or the invoice issued at the same time, if any, contain the above information.
All costs, charges and expenses resulting from non-compliance with this provision shall be borne by the Contractual Partner.

Contractual disruptions:

If the supplier ceases to make payments, if a preliminary insolvency administrator is appointed or if insolvency proceedings are opened against the assets of the supplier, we shall be entitled to refuse performance of the contract in whole or in part and to claim damages or to withdraw from the contract.
In the event that insolvency is imminent or has occurred at the supplier, we shall be entitled to make an appropriate security retention for the duration of the relevant warranty/guarantee periods.

Force Majeure:

Force majeure, strike, lockout, operational disruptions of any kind, riots, official measures and other unavoidable events that occur through no fault of our own shall release us - without prejudice to other rights - in whole or in part from the obligation to accept ordered goods, without the supplier being able to claim damages and assert other claims against us. The contractual partners shall be obliged to provide the necessary information without delay within the scope of what is reasonable and to adjust their obligations to the changed circumstances in good faith.

Severability clause:

Should individual provisions of the contract with the contractual partner, including any of the aforementioned provisions of these General Terms and Conditions of Purchase, be void, ineffective or unenforceable for any reason, this shall not affect the validity of the remaining provisions and the underlying contract.
headings in these terms and conditions of purchase are for convenience only and do not define or limit the provisions of these terms and conditions as such and in particular not with regard to the content of the individual sections.

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