Standard Business Conditions

 I. GENERAL Provisions

1. Legal relations between supplier and purchaser in connection with supplies of the supplier shall be solely governed by the present GL. The purchaser's general terms and conditions shall apply only if expressly accepted by the supplier in writing. The scope of delivery shall be determined by the congruent mutual written declarations.

2. The supplier herewith reserves any industrial property rights and copyrights pertaining to its cost estimates, drawings and other documents (herein after referred to as documents g. The documents shall not be made accessible to third parties without the supplier's prior consent and shall, upon request, be returned without undue delay to the Supplier if the contract is not awarded to the supplier. Sentences 1 and 2 shall apply mutatis mutandis to the purchaser's documents; these may, however, be made accessible to third parties to whom the supplier has rightfully subcontracted supplies.

3. Partial supplies are allowed, unless they are unreasonable to accept for the Purchaser.

4. The term of claim for damages áused in the present GL also includes claims for indemnification of useless expenditure.

 

II. PRICES,TERMS OF PAYMENT

1. Prices are ex works and excluding packaging; value added tax shall be added at the then applicable rate.

2. Payments shall be made free supplier/German bank .

3. The purchaser may set off only those claims which are undisputed or nonappealable.

 

III. RENTENTION OF TITLE

1. Items pertaining to the supplies (retained goods g) shall remain the Supplier's property until each and every claim the supplier has against the customer on account of the business connection has been fulfilled. If the combined value of the supplier's security interest exceeds the value of all secured claims by more than 25 %, the supplier shall release a corresponding part of the security interest if so requested by the customer; the supplier shall be entitled to choose which security interest it wishes to release.

2. For the duration of the retention of title, the purchaser may not pledge the retained goods or use them as security; and resale shall be possible only for re-sellers in the ordinary course of their business and only on condition that the re-seller receives payment from its customer or makes the transfer of property to the customer dependent upon the customer fulfilling its obligation to effect payment.

3. Should customer resell retained goods, it assigns to the supplier, already today, all claims it will have against its customers out of the resale, including any collateral rights and all balances claims, as security, without any subsequent declarations to this effect being necessary. If the retained goods are sold on together with other items and no individual price has been agreed with respect to the retained goods, customer shall assign to the supplier such fraction of the total price claim as is attributable to the price of the retained goods invoiced by Supplier.

4a) Customer may process, amalgamate or combine retained goods with other items. Processing is made for supplier. Customer shall store the new item thus created for supplier, exercising the due care of a diligent business person. The new items are considered as retained goods.

b) Already today, supplier and customer agree that if retained goods are combined or amalgamated with other items that are not the property of supplier, supplier shall acquire co-ownership in the new item in proportion of the value of the retained goods combined or amalgamated to the other items at the time of combination or amalgamation. In this respect, the new items are considered as retained goods.

c) Where customer aser combines retained goods with real estate or moveable goods, it shall, without any further declaration being necessary to this effect, also assign to Supplier as security its claim to consideration for the combination, including all collateral rights for the prorata amount of the value the combined Retained Goods have on the other combined items at the time of the combination.

d) Until further notice, customer may collect assigned claims relating to the resale. Supplier is entitled to withdraw customer's permission to collect funds for goods reason, including, but not limited to delayed payment, suspension of payments, start of insolvency proceedings, protest or justified indications for over-indebtedness or pending insolvency of customer.

 

IV. TIME FOR SUPPLIES; DELAY

1. Times set for supplies shall only be binding if all documents to be furnished by the customer, necessary permits and approvals, especially concerning plans, are received in time and if agreed terms of payment and other obligations of the customer are fulfilled. If these conditions are not fulfilled in time, times set shall be extended reasonably; this shall not apply if the supplier is responsible for the delay.

2. If non-observance of the times set is due to:

a) force majeure, such as mobilization, war, terror, attacks, rebellion or similar events (e.g. strike or lockout).

b) hindrances attributable to German, US or otherwise applicable national, EU or international rules of foreign trade law or to other circumstances for which Supplier is not responsible.

c) the fact that Supplier does not receive its own supplies in due time or in due form such times shall be extended accordingly.

3. If the supplier is responsible for the delay (hereinafter referred to as Delay g) and the customer has demonstrably suffered a loss therefrom, the customer may claim a compensation as liquidated damages of 0,25% for every completed week of delay, but in no case more than a total of 1% of the price of that part of the supplies which due to the delay could not be put to the intended use.

4. Customer claims for damages due to delayed supplies as well as claims for damages in lieu of performance exceeding the limits specified in No. 3 above are excluded in all cases of late supplies, even upon expiry of a time set to the supplier to effect the supplies. This shall not apply in cases of liability based on intent, gross negligence, or due to loss of life, bodily injury or damage to health. Recession of the contract by the customer based on statute is limited to cases where the supplier is responsible for the delay. The above provisions do not imply a change in the burden of proof to the detriment of the customer.

5. At the supplier request, the customer shall declare within a reasonable period of time whether it, due to the delayed supplies, rescinds the contract or insists on the delivery of the supplies.

6. If dispatch or delivery, due to customer's request, is delayed by more than one month after notification of the readiness for dispatch was given, the customer may be charged, for every additional month commenced, storage costs of 0,25% of the price of the items of the supplies, but in no case more than a total of 1%. The parties to the contract may prove that higher or, as the case my be, lower storage costs have been incurred.

 

V. PASSING Of RISKS

1. Even where delivery has been agreed freight free, the risk shall pass to the customer as follows:

a) if the delivery does not include assembly or erection, at the time when it is shipped or picked up by the carrier. Upon the customer's request , the supplier shall insure the delivery against the usual risks of transport at the expense of the customer;

b) The risk shall pass to the customer if dispatch, delivery, the start or performance of assembly or erection, the taking over in the customer's own works, or the trial run is delayed for reasons for which the customer is responsible or if the customer has otherwise failed to accept the supplies.

 

VI. ASSEMBLY AND ERECTION

General conditions for the supply of products of the electrical and electronics industry for commercial transactions between businesses recommended by the Zentralverband Elektrotechnik und Elektronikindustrie (ZVEI) e.V. June 2011)

 

VII. RECEIVING OF SUPPLIES

The customer shall not refuse to receive supplies due to minor defects. VIII. DEFECTS AS TO QUALITY The supplier shall be liable for the defects as to quality as follows:

1. Defective parts or defective services shall be, at the suppliers discretion, repaired, replaced, or provided again free of charge, provided that the reason for the Defect had already existed at the time when the risk passed.

2. Claims for to repair or replacement are subject to a statute of limitations of 12 month calculated from the start of the statutory statute of limitations; the same shall apply mutatis mutandis in the case of rescission and reduction. This shall not apply where longer periods are prescribed by law according to Sec. 438 /1 No. 2 , Sec. 479 /1 (right of recourse) and Sec. 634a / 1 No. 2 German Civil code (BGB), in the case of intent, fraudulent, concealment of the defect or noncompliance with guaranteed characteristics. The legal provisions regarding suspension of the statute of limitations and recommencement of limitation periods shall be unaffected.

3. Notifications of defect by the customer shall be given in written form without undue delay.

4. In the case of notification of a defect, the customer may withhold payments to an amount that is in a reasonable proportion to the defect. The customer, however, may withhold payments only if the subject-matter of the notification of the defect involved is justified and incontestable.The customer has no right to withhold payments to the extent that its claim of a defect is time-barred. Unjustified notifications of defect shall entitle the supplier to demand reimbursement of its expenses by the customer.

5. The supplier shall be given the opportunity to repair or replace the defective good within a reasonable period of time.

6. If repair or replacement is unsuccessful, the customer is entitled to rescind the contract or reduce the remuneration, any claims for damages the customer may have according to No. 10 shall be unaffected..

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, defective civil works, inappropriate foundation soil or claims based on particular external influences not assumed under the contract, or from non-reproducible software errors. Claims based on defects attributable to improper modifications or repair work carried out by the customer or third parties and the consequences thereof shall be likewise excluded.

8. The cusdtomer 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 extend that expenses are increased because the subject-matter of the supplies was subsequently been brought to another location than the purchaser branch office, unless doing so complies with the normal use of the supplies.

9. The customer’s right of recourse against the suppliers pursuant to Sec. 478 BGB is limited to cases where the customer has not concluded an agreement with its customer exceeding the scope of statutory provisions governing claims based on defects. Moreover, No. 8 above shall apply mutatis mutandis to the scope of the right of recourse the customer has against the supplier pursuant to Sec. 478 $ 2 BGB.

10. The customerr shall have no claim for damages based on defects. This shall not apply to the extent that a defect has been fraudulently concealed, the guaranteed characteristics are not complied with, in the case of loss of life, bodily injury or damage of health, and / or intentionally 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 customer. Any other or additional claims of the customer exceeding the claims provided for in this Article VIII, based on a defect, are excluded.

 

IX. INDUSTRIAL PROPERTY RIGHTS AND COPYRIGHT; DEFECTS IN TITLE

1. Unless otherwise agreed, the supplier shall provide the supplies free from third parties industrial property rights and copyrights with respect to the country of the place of delivery only. If a third party asserts a justified claim against the customer 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 customer within the time period stipulated in Art. VIII No. 2 as follows:

a) The supplier shall choose whether to acquire, at its own expense, the right to use the IPR with respect to the supplies concerned or whether to modify the Supplies such that they no longer infringe the IPR or replace them. If this would be impossible for the supplier under reasonable conditions, the customer may rescind the contract or reduce the remuneration pursuant to the applicable statutory provisions;

b) The supplier liability to pay damages shall be governed by Art. XII;

c) The above obligations of the supplier shall apply only if the customer immediately notifies the supplier of any such claim asserted by the third party in written form, does not concede the existence of an infringement and leaves any protective measures and settlement negotiations to the supplier's discretion. If the customer stops using the supplies in order to reduce the damage or for other good reasons, it shall be obliged to point out to third party that no acknowledgement of the alleged infringement may be inferred from the fact that the use has been discontinued.

2. Claims of the customer shall be excluded if it is responsible for the infringement of an IPR.

3. Claims of the customer are also be excluded if the infringement of the IPR is caused by specifications made by the customer, by a type of use not foreseeable by the supplier or by the supplies being modified by the customer or being used together with products not provided by the supplier.

4. In addition, with respect to claims by the customeer pursuant to No. 1 a) above, Art. VIII Nos. 4, 5, and 9 shall apply mutatis mutandis in the event of an infringement of an IPR.

5. Where other defects in title occur, Art. VIII shall apply mutatis mutandis.

6. Any other claims of the customer against the supplier or its agents or any such claims exceeding the claims provided for in this Art. IX, based on a defect in title, are excluded.

 

X. Conditional Performance

1. The performance of this contract is conditional upon that no hindrances attributable to German, US or otherwise applicable national, EU or international rules of foreign trade law or any embargos or other sanctions exist.

2. The customer shall provide any information and documents required for export, transport and import purposes.

 

XI. IMPOSSIBLITY OF PERFORMANCE; ADAPTATION OF CONTRACT

1. To the extent that delivery is impossible, the customer is entitled to claim damages, unless the supplier is not responsible for the impossibility. The customer’s claim for damages is, however, limited to an amount of 10% of the value of the part of the supplies which, owing to the impossibility, can’t be put to the intended use. This limitation shall not apply in the case of liability based on intend, gross negligence or loss of live, body injury or damage of heath; this does not imply a change in the burden of proof to the detriment of the customer. The customer's right to rescind the contract shall be unaffected.

2. Where events within the meaning of Art. IV No. 2 (a) to (c) 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. To the extent this is not justifiable for economic reasons, the supplier shall have the right to rescind the contract. The same applies if required export permits are not granted or cannot be used. If the supplier intents to exercise its right to rescind the contract, it shall notify the customer thereof without undue delay after having realized the repercussions of the event; this shall also apply even where an extension of the delivery period has previously been agreed with the customer.

 

XII. OTHER CLAIMS FOR DAMAGES

1. Unless otherwise provided for in the present GL, the customer has no claim for damages based on whatever legal reason, including infringement of duties arising in connection with the contract or tort.

2. This does not apply if liability is based on: a) German Product Liability Act b) intent c) gross negligence on the part of the owners, legal reps or executives d) fraud e) failure to comply with a guarantee granted f) negligent injury to life, limb or health g) negligent breach of a fundamental condition of contract However, claims for damages arising from a breach of a fundamental condition of contract shall be limited to the foreseeable damage which is intrinsic to the contract, provided that no other of the above case applies.

3. The above provision does not imply a change in the burden of proof to the detriment of the customer.

 

XIII. VENUE AND APPLICABLE LAW

1. If the customer is a businessman, sole venue for all disputes arising directly or indirectly out of the contract shall be the supplier Ls place of business. However, the supplier may also bring an action at the customer Ls place of business.

2. The contract and its interpretation shall be governed by German law, to the exclusion of the United Nations Convention on contracts for the International Sale of Goods (CISG).

 

XIV. SEVERABLITIY CLAUSE

The legal invalidity of one ore more provisions of this agreement in no way affects the validity of the remaining provisions. This shall not apply if it would be unreasonable onerous for one of the parties to be obligated to continue the contract.  

 

Neubeuern 29.02.2012

Lights of Bavaria UG®

Georg-Wiesböck-Ring 2

83115 Neubeuern/Germany