Terms and Conditions

of WORK Microwave GmbH dated 01 December 2011

1. General

a) Our Terms and Conditions of Purchase apply exclusively; we do not acknowledge any terms of the Supplier that conflict with or deviate from our Terms and Conditions of Purchase unless we have expressly agreed in writing to their application. Even if we accept a delivery or make payment against a delivery without attaching any conditions, this cannot be construed as an acceptance of any business terms that conflict with or deviate from our own.

b) Agreements between the Supplier and us must be made in writing. Agreements that are concluded by e-mail meet the above requirement for the written form. Agreements made verbally or by telephone of any kind, including any subsequent alterations or additions, are binding only if we confirm the same in writing. Any alteration of the requirement for the written form must also be agreed in writing. We are nevertheless free to enter into individual agreements with the Supplier. These must be agreed in the written form as specified above.

c) Our Terms and Conditions of Purchase apply to companies only as per sec. 310 German Civil Code (BGB).

d) Our Terms and Conditions of Purchase also apply to all future transactions with the Supplier, if similar kinds of transactions are involved.

2. Quotations and Quotation Documents

a) The Supplier is obliged to accept the order within 14 days. In the absence of acceptance, our purchase order loses all validity. Order releases under blanket purchase orders become binding if the Supplier does not object within three working days of receipt.

b) Unless expressly agreed otherwise, quotations and cost estimates are binding and free of charge. Unless otherwise agreed in the individual case, we accept no costs and pay no remuneration for visits, planning and other preparatory services provided by the Supplier in connection with the submission of quotations.

c) We reserve all rights of title and copyright to illustrations, drawings, calculations and other documents that we have forwarded to the Supplier together with our order. These documents may be made accessible to third parties only with our express written consent. They must be used in accordance with our order. Such documents must be returned to us without delay on receipt of our written request. Unless the Supplier accepts the order within the period specified in Article 2 a), the documents must be returned to us without delay. They must be kept secret from third parties. Furthermore, the Supplier is obliged to give us written confirmation without delay that documents provided have been deleted or destroyed.

3. Delivery

a) Agreed delivery dates and delivery periods are binding. The timeliness of delivery is determined by the time of receipt at our notified reception point (or time of acceptance for work performed). If goods are delivered earlier than agreed, we reserve the right to send back the goods at the Supplier’s expense. If we do not return goods delivered early, we take them into stock at the cost and risk of the Supplier until the delivery date.

b) If a delay in delivery or performance is recognisable, or if circumstances occur that indicate that the stipulated delivery period or agreed delivery date cannot be adhered to, we must be notified in writing without delay of the reasons for and the probable duration of the delay; moreover, we must be asked for our decision. This does not affect our right to withdraw from the contract or to claim damages as appropriate.

c) If the Supplier is in default, we may require payment of a contractual penalty of 5% of the order value for each week commenced, however, a maximum of 20% of the total order value. We may demand the contractual penalty even if we accept the delayed delivery without attaching any conditions.

d)  If we accept the delayed delivery or service without attaching any conditions, this does not constitute any waiver of the claims to compensation accruing to us by reason of the delayed delivery or service. This applies until we have made payment in full of the remuneration for the relevant delivery or services.

e)  We accept part deliveries only by express agreement. In the event of agreed part-deliveries, the amount of the back order must be shown. In the event of excess deliveries that exceed the usual commercial volumes, we reserve the right to return the excess goods delivered at the expense of the Supplier.

f)  The Supplier may only invoke the absence of necessary documents to be supplied by us, if the Supplier has sent us a written reminder regarding the documents but failed to receive them within a reasonable period of time.

g) For all goods to be delivered and services to be provided, the Supplier must comply with the relevant applicable requirements of national and international export law, customs law and foreign-trade law. Unless the applicable foreign- trade law requires the Buyer or a third party and not the Supplier to apply for any necessary shipment or export permits, the Supplier must obtain these permits.

h) If we have informed the Supplier of the intended purpose of the deliveries or services, or if the intended purpose is evident to the Supplier even without this express notification, the Supplier is obliged to notify the Buyer without delay if the deliveries or services of the Supplier are not suitable for this intended purpose.

i) The Supplier must notify us without delay in writing of any changes in the composition of the materials processed or in the design or workmanship compared to deliveries and services of a similar nature provided up to that date. Changes of this kind require our written consent. In the absence of such consent, deliveries and services by the Supplier are deemed to be defective.

4. Acceptance of Deliveries and Services

a) Circumstances, which were unforeseeable at the time of placing the order, release us from our obligation to accept the goods for the duration and to the extent of their effects, if we are unable to avert these circumstances by taking reasonable action.

b) In the event of force majeure, the contractual parties are released from the obligation to performance for the duration of the disturbance and to the extent of its effects. The contractual parties are obliged to provide the requisite information without delay as far as reasonable and to adapt their obligations to the changed circumstances in good faith. We are released wholly or partly from the obligation to accept the delivery or service ordered and entitled to withdraw from the contract to this extent if, because of the delay caused by force majeure, the delivery or service ordered – giving consideration to commercial aspects – is no longer of any use to us.

5. Passing of the Risk and Shipment

a)  In the case of deliveries involving erection and assembly and for services, the risk passes at the time of acceptance; for other deliveries, the risk passes on receipt at our notified reception point.

b) Unless otherwise agreed, goods shall be delivered duty paid (DDP), Incoterms 2010®. The items for delivery must be properly packaged and shipped, in which case the statutory provisions of the German Packaging Regulation (Verpackungsverordnung) at least must be complied with.

If the price applies EXW, the goods must be shipped by the freight-forwarder we have appointed. This also applies to general cargo, unless the Supplier delivers using its own vehicles.
We reserve the right to issue routing orders. The Supplier must pay the extra costs incurred due to failure to comply with a shipping or packaging regulation or costs for a faster mode of transport necessary to meet a delivery date.

c)  The advice notes, delivery notes and invoices for each delivery must always show our purchase-order number, item number and reference number. Deliveries made to our contractual partners directly by the Supplier must be made in our name. We must be notified of such shipment on the date of shipment.

d) Part-deliveries and back orders must be described as such in the shipping documents. The Supplier pays the additional costs incurred for making part deliveries out of complete units representing functional groups without receiving our release order. The Supplier is also liable for all costs that we incur due to the Supplier’s failure to comply with the aforesaid regulations or due to the Supplier using an incomplete or wrong address for the delivery.

e) We shall not accept the costs of insuring the goods, in particular freight-forwarding insurance. Please note that we expressly waive the liability insurance of the General Terms and Conditions of German Freight Forwarders (ADSp) of 15/02/2010. This cost agreement does not contain any instruction to the Supplier not to obtain insurance. We prohibit the freight-forwarder from obtaining insurance on our behalf.

6. Export Control

The Supplier must provide the Buyer as soon as possible, however, no later than 2 weeks before the delivery date, with all information and data in writing that the Buyer requires in order to comply with the applicable foreign-trade law in the event of export, shipment and import and in the event of resale after re-export of goods and services, in particular for each good and for each service:

–  the Export Control Classification Number (ECCN) according to the U.S. Commerce Control List (CCL), if the good is governed by the U.S. Export Administration Regulations;
–  all applicable export-control classification numbers (if the good is not governed by any export control classification number, this must be rendered as “AL:N”);
–  the statistical product reference number according to the current classification of foreign-trade statistics and the HS (Harmonized System) code;
–  the country of origin (non-preferential origin) and,
–  If the Buyer so requests, supplier declarations on preferential origin (for European

suppliers) or preference certificates (for non-European countries), (EXPORT CONTROL AND FOREIGN-TRADE DATA)

In the event of changes in origin, in the properties of the goods or services or in the applicable foreign-trade law, the Supplier must communicate the export-control and foreign-trade data as soon as possible, however, no later than 1 week before the delivery date and notify the Buyer in writing. The Supplier pays all expenses and damages suffered by the Buyer due to the absence of or the erroneous nature of export-control and foreign-trade data.

Performance of the contract by the Buyer is always conditional on there being no obstacles to performance by reason of national or international foreign-trade law or embargos (and/or other sanctions).

7. Invoices

One original invoice must be submitted for each order. They must show our purchase-order number, item number and reference number. Value-added tax must always be shown separately.

8. Prices and Terms of Payment

a) The prices shown in the purchase order are binding.
b)The period for payment begins as soon as the delivery or service has been provided in full and the duly issued invoice has been received. However, the period for payment does not begin before the agreed delivery date.

c) Where the Supplier is obliged to provide test reports, quality documents, documentation or other records, the receipt of these documents is a precondition for the completeness of the delivery and service. Another precondition for the completeness of the delivery and service is the elimination of existing defects, unless fewer than 50% of deliveries are affected by defects. In this event, we may retain five times the amount of the foreseeable costs of improvement.

d) Unless statutory provisions provide otherwise and/or no other term of payment has been agreed in writing, we pay the selling price within 14 days with 3% discount or within 21 days with 2% discount or within 30 days net, counted from the date of delivery and receipt of invoice.
We may deduct discount also when setting off.

e) Place of performance for payments is the registered office/seat of WORK Microwave GmbH:

f) Payments cannot be construed as confirmation that deliveries or services are in conformity with the contract.

g) Unless otherwise agreed in writing, we do not pay any travelling expenses or accommodation expenses for fitters of the Supplier.

9. Liability for Defects

a)  The deliveries or services must conform to the specifications and other details, such as standards and other documents. The deliveries and services must in each case conform to the generally recognised rules of technology, statutory and official safety regulations and environmental-protection regulations that apply in Germany or have already been passed with a period of transition.

b)  A goods-received inspection takes place only in respect of obvious defects, transport damage, completeness and to identify the goods. We shall notify any such defects within a reasonable period of time. We reserve the right to perform a more extensive goods-received inspection. Moreover, we shall notify any defects as soon as they are discovered in the course of normal business operations. To this extent, the Supplier waives the defence of delayed notification of defect.

c)  The statutory rights in the event of defects are available to us without restriction. We have the right in each case to require the Supplier, at our discretion, to eliminate the defects or deliver a new item. We expressly reserve the right to claim compensation for damages, in particular damages in lieu of performance.

d)  If we incur costs due to the defective delivery of the contractual subject matter, including but not limited to, transport costs, travelling expenses, labour costs, material costs or costs for a goods-received inspection that goes beyond the usual extent, the Supplier must pay these costs.

e)  If the Supplier does not begin to eliminate the defect without delay after our demand for elimination of the defect, then, in urgent cases, in particular to avert acute dangers and/or to avoid disproportionately greater damage, we have the right to eliminate the defect ourselves at the expense of the Supplier or have this done by third parties.

10. Limitation Periods

a)  Unless a longer period is provided by statute or contract, the limitation period for material and legal defects is 3 years from the date of passing of the risk. Claims for subsequent performance or compensation for damages or refund of wasted expenditure especially become time-barred after 3 years.

b)  If the Supplier meets its subsequent-performance obligations by delivering replacements, the limitation period for the replacement goods delivered begins anew after their delivery unless the Supplier expressly and appropriately reserved the right, at the time of subsequent delivery, to make delivery only on goodwill grounds or in order to avoid disputes.

c)  The limitation period is suspended if, and for as long as, we are negotiating with the Supplier on the claim or about the circumstances giving rise to the claim. Suspension ends if either the Supplier notifies or we notify any refusal to continue negotiations in writing. Limitation occurs at the earliest 3 months after the suspension has ended. The recommencement of negotiations regarding the elimination of the defects has the effect of suspending the limitation period anew. Otherwise the limitation period is suspended in the cases provided by statute.

11. Spare-Parts Provision

The Supplier is obliged, subject to reasonable terms and conditions, to deliver spare parts for the customary period of technical use, however, for at least 10 years from the date of the last delivery of the relevant delivery item. If the Supplier ceases to deliver spare parts after expiry of the aforementioned period, or ceases to deliver the relevant delivery item during this period, we must be given the opportunity to place a last order or to receive the relevant manufacturing documents free of charge.

The Supplier must notify the Buyer of EXPORT-CONTROL AND FOREIGN- TRADE DATA also for the spare parts within the periods specified in Article 6. The Supplier pays all expenses and damages suffered by the Buyer due to the absence or erroneous nature of EXPORT-CONTROL AND FOREIGN-TRADE DATA.

12. Product Liability

a)  If the Supplier is responsible for damage caused by a product, the Supplier is obliged to indemnify us against claims for damages brought by third parties on first demand. Where the Supplier is liable, the Supplier is also obliged to refund any expenses under secs. 683, 670 Civil Code (BGB) and under secs. 830, 840, 426 BGB arising from or in connection with any recall action that we undertake. As far as possible and reasonable, we shall notify the Supplier of the subject matter and extent of any recall actions to be undertaken and give the Supplier an opportunity to make a statement.

b) The Supplier undertakes to maintain product-liability insurance with a lump-sum cover amount of €5 million per personal injury/property-damage claim. This does not affect any claims to damages that we may have that exceed this amount.

13. Industrial Property Rights and Other Third-Party Rights

a) The Supplier is liable for ensuring that the delivery items are delivered free of rights of third parties and that no proprietary rights of third parties are infringed in connection with the delivery.

b)  The Supplier indemnifies us against all claims brought against us for breach of an industrial property right or other third-party rights and pays the costs of preserving the rights if these claims are based on a culpable breach of duty by the Supplier. We shall notify the Supplier without delay in the event of a claim being brought.

14. Title to Customer-Supplied Items

a) We retain title to the models, designs, manufacturing equipment, tools, gauging and testing equipment, materials supplied, drawings, factory-standard sheets, print copy and similar that we have supplied. Any order-related manufacturing equipment and tools made by the Supplier are made on our behalf. The Supplier shall store these items with the care of a prudent businessperson free of charge and separately from other items in its possession, mark them as our property and use them only for the purpose of providing deliveries and services to us. The Supplier pays the costs for the care, maintenance and renewal of parts of manufacturing equipment, which were provided by or manufactured for us. This manufacturing equipment may only be modified with our prior written consent. We may require the surrender of the manufacturing equipment if:

– this has been agreed in a tooling contract
– the Supplier becomes unable to supply the parts made with the manufacturing equipment,

– the Supplier suffers financial collapse, in particular if insolvency proceedings are instituted on its assets or

– an application for the opening of such proceedings has been made or
– the business relations have ended.
The Supplier is obliged to insure the tools belonging to us, on request, for their new value at its own expense against damage by fire, water and theft. The Supplier already now assigns to us all indemnity claims to damages arising from this insurance and we accept this assignment.

b) If the Supplier processes or transforms materials we have provided, this work is done on our behalf. We will become the direct owner of the items thereby produced. If the materials we have supplied are processed with other goods that do not belong to us, we acquire a co-ownership share in the new item in the proportion of the value of our item (cost price plus statutory VAT) to the other items processed at the time of processing.

c) If the item supplied by us is inseparably combined or mixed with other goods that do not belong to us, we acquire a co-ownership share in the new item equal to the proportion of the value of our items (cost price plus statutory VAT) to the other items combined or mixed at the time of combining or processing. If combining or mixing occurs in a way that items not owned by us are regarded as the principal item, it is deemed to have been agreed that the Supplier assigns a pro-rata share of title to us. The Supplier keeps the sole title or shared title safe on our behalf.

d) Where the value of security rights accruing to us exceeds the selling price for all reserved-title goods still unpaid by more than 20%, we are obliged, if the Supplier so requests, to release security rights at our discretion.

e) In the event that the Supplier breaches the prohibition of unauthorised use, we are entitled, without prejudice to other rights, to withdraw from the contract or terminate the contract and claim damages.

15. Preservation of Secrecy/Prohibition of Advertising

a) The Supplier is obliged to maintain secrecy about all information received, whether recorded in writing or given verbally or embodied in the objects given into the Supplier’s possession. The obligation to maintain secrecy continues even beyond completion of this contract and extinguishes only if, and to the extent to which, the manufacturing expertise contained in the information provided becomes generally known.

b) Any reference to our business relations made by the Supplier for advertising purposes requires our express consent.

c) Any subcontractors must be obliged to give the same undertakings.

16. Assignment of Receivables/Set-Off

a) The Supplier requires our consent to assign accounts payable by us.
b) The Supplier may only exercise set-off against undisputed and/or final and non-appealable claims.

17. Additional Set-off Possibilities

We are entitled to set-off our own accounts payable or those of companies affiliated to us as defined in Section 15 Stock Corporation Act (Aktiengesetz) against receivables of the Supplier, independently of their due dates.

18. Place of Performance, Governing Law and Place of Jurisdiction, Miscellaneous

a) Place of performance for deliveries and services is the place of destination. Otherwise, place of performance is our registered office (seat).

b) The law of the Federal Republic of Germany applies exclusively. The application of the UN Convention (Vienna Sales Convention) on contracts for the international sale of goods is excluded.

c) Place of jurisdiction is the registered office (seat) of WORK Microwave GmbH.

d) We notify the Supplier of the storage of the Supplier’s personal data in accordance with Section 26 Federal Data Protection Act (Bundesdatenschutzgesetz (BDSG)). e) Any invalidity of individual provisions of these Terms and Conditions of Purchase does not affect the validity of the remaining provisions. The parties undertake in this event to replace the invalid provision by a valid provision that comes as close as possible to the economic purpose of the invalid provision.

of WORK Microwave GmbH dated June 2020

1. Scope of Application

The following General Terms and Conditions of Sale shall apply to all work and goods provided by WORK Microwave GmbH (hereinafter WM) and form an integral part of the Proposal and apply to any delivery or performance of Works by WM, unless otherwise agreed by WM in writing.

2. Conclusion of Contract

2.1      In case of a Proposal explicitly marked by WM as binding, the Contract shall come into force upon receipt by WM of the Customer’s written acceptance of the binding Proposal, or WM written acknowledgement of the Customer’s Purchase Order, and, if agreed, the receipt by WM of the respective advance payment.

2.2      An order placed by the Customer based on a non-binding Proposal, or an order placed by the Customer which is deviating from the binding Proposal proposed by WM shall constitute a binding offer, which WM is free to accept within 2 (two) weeks of receipt thereof, by way of written confirmation. No such order shall be deemed accepted unless and until confirmed in writing by WM. The final delivery date may be confirmed at a later stage by WM, but not later than within 4 (four) weeks of order confirmation.

2.3      The General Terms and Conditions shall apply exclusively. The customer’s deviating, contrary or supplementing general terms and conditions of supply shall only become part of the contract as far as WM has explicitly consented to their application. In the event of any inconsistencies or conflicts between these General Terms and other documents forming part of the Contract, the following order of precedence shall apply:
(a) Any written agreement between the Parties where the Parties explicitly agree that any of the provisions of these General Terms and/or the Proposal should be superseded; (b) the Proposal; (c) WM General Terms; (d) the order by the Customer.

3. Documentation

3.1      Any documents such as data sheets, specifications, pictures, drawings, details of weights and dimensions, calculations, etc. that WM has transferred or made available to the Customer prior to conclusion of the contract shall not be deemed a constituent part thereof, unless expressly stated to this effect in the order confirmation. WM also reserves the right to undertake alterations to the technical concept on which the delivery is based provided there is no impairment to quality and ordered specification profile.

3.2      All documents with exception to contractual deliveries shall remain the sole property of WM, even when transferred to the Customer. They shall be treated as secret and confidential and shall not be disclosed to third parties or used by the customer for itself or for the benefit of third parties without WM’s written approval. They must be returned to WM on request.

4. Prices

4.1      All prices are expressed and all payments for the works shall be made in Euros (EUR) unless otherwise agreed in writing.

4.2      WM’s prices are included in the order confirmation. They are exclusive of any import/export value-added-taxes, stamp duty or equivalent taxes levied on account of sales in or upon importation into the country where they will be used. Any and all income tax, withholding tax, and any other fiscal taxes whatever their nature (direct/indirect) potentially due in the country of the Customer or end-customer are under the sole responsibility of the Customer. Costs for packaging, loading and freight, shall be charged separately. Invoices will include the relevant applicable statutory rate of value-added tax.

5. Terms of Payment

5.1      All payments shall be made in Euros (EUR) by the Customer in accordance with the individually agreed payment periods and are not subject to deductions.

5.2      Unless otherwise agreed, the following due dates are applicable:

30% of the order value on conclusion of contract (Purchase Order placement) and the outstanding amount on readiness for shipment (Prepayment).

5.3      Prepayment shall be made immediately upon reception of invoice.

5.4      Where there is a delay in payment on the part of the Customer, WM shall be entitled to levy interest on arrears at a rate of 8 percentage points above the applicable base rate. WM shall further be entitled to claim a higher rate of interest based on other legal grounds and / or to claim further damages.

5.5      The Customer shall not be entitled to offset counterclaims, unless the counterclaims are undisputed by WM or have become res judicata.

5.6      Where a substantial deterioration in the Customer’s financial circumstances occurs subsequent to conclusion of contract, or where circumstances become known to WM exposing the claim for remuneration to risk, WM shall be entitled to refuse to perform its obligation to deliver under the contract, until the Customer has performed its obligations under the contract or has provided security for such obligations.

5.7      WM shall be entitled to set a reasonable period of time during which the Customer must, at its choice, perform its contractual obligation in return or provide WM security for performance. Where on expiry of such period, no performance has been undertaken, WM shall be entitled to terminate the contract.

5.8      Unless otherwise notified, offers are valid for three months. In the case of offers in foreign currencies (USD), revisions of the offer may result in changes due to currency fluctuations.

6. Delivery

6.1      Delivery dates are specified in the order confirmation of WM. Delivery dates are met where the shipment is ready for shipping within the agreed period and appropriate notification is received by the Customer. WM is entitled to undertake partial deliveries at its own expense.

6.2      Unless otherwise agreed in the contract or order confirmation, all deliveries are effected Ex-Works WM location Incoterms® 2010. Freight and packing costs are invoiced additionally where shipping is agreed. In such cases, WM shall conclude transport insurance at the cost of and for the benefit of the Customer. The Customer must notify, in writing, WM and the freight forwarder, carrier or collector carrying out the delivery of any claims relating to transport immediately after receipt of the delivery.

6.3      In cases of force majeure, WM shall be entitled to an extension of the contractually agreed delivery dates by such further periods as may reasonably reflect the delay caused by such force majeure event.
Where, through force majeure, delivery by WM becomes impossible in total or for a period of at least six months, WM shall have the right to terminate the Contract. In such a case, WM shall be reimbursed by the Customer for Works already performed/delivered in accordance with the agreed Contract prices, cost of other materials or goods reasonably ordered
The term force majeure includes all circumstances beyond the control of WM and which make delivery impossible or unreasonably difficult for WM, e.g. strike, legal lock-out, civil war, acts of terror, unrest, natural disasters, shortage of energy and raw materials (if beyond the control of WM), cyber-attacks (if beyond the control of WM).

6.4      Compliance with the specified delivery periods by WM is based on timely and proper performance of all contractual duties of cooperation by the Customer at its own cost, i.e. in particular the provision of all necessary documents, certificates and releases relating to delivery. Where the Customer experiences delays in performing its duties of cooperation, the delivery periods for WM shall be reasonably deferred or extended by the period of delay. WM reserves the right, after expiry of a reasonable period of time specified by WM, to withdraw from the contract, to demand damages in place of performance or in lieu of unnecessary expenditure. Further rights such as claims to damages, remain unaffected. The Customer fully recognises the aforementioned duties of cooperation as essential to delivery.

6.5      Where delivery is postponed beyond the agreed delivery date at the request of the Customer or falling within the customer´s responsibility, WM shall invoice the Customer with costs arising from the date of the original delivery date or date of notification of readiness for shipment; the amount shall be 0.5% of the total invoice amount for each week or fraction of a week. The Customer shall be entitled to furnish proof that WM incurred lower expenditure or no expense at all.

6.6      Where WM delays in delivery, the Customer shall be entitled to demand damages amounting to 0.2% of the remuneration due on the delayed delivery for each complete week of delay, but at a maximum of 2 % of the delayed delivery milestone value, unless WM furnishes proof that the Customer sustained a lower level of loss or no loss at all. Such remedy on the part of WM shall be the sole and exclusive remedy of the Customer, in the event of any delay and shall be in lieu of any other rights the Customer may have against WM under the law, subject to the provisions of section 11.

6.7      The Customer shall examine the delivery immediately upon receipt in order to identify any defects and in the case of any obvious defect, shall inform WM accordingly in writing within a period of 1 (one) week after delivery. Such notification of defects shall be accompanied with relevant supporting evidence. In case of defects that are not apparent, the Customer must notify WM within a period of 2 (two) weeks after detection of the defect. Where the Customer fails to provide notification within these exhaustive time limits the delivery shall be deemed approved and accepted by the Customer, with the result that the Customer loses its rights to assert defects in accordance with section 10.

The Customer shall not be entitled to withhold acceptance for (a) minor deviations or functioning of the Deliverables; or (b) defective installation or erection by the Customer and/or its subcontractors; or (c) reasons that are not within the reasonable control of WM.

7. Export Controls

7. 1      An act of Government or any public authority which has a consequence that the Works may not be supplied, e.g. non-issuance, restriction and/or revocation of export, import or other required licenses, permits, or authorizations, export or import regulations or embargoes, shall be deemed to be a condition subsequent to the Contract and WM shall not be liable in this regard to the Customer or deemed to be in breach of Contract. Where there is such an act, WM shall be entitled to a reasonable extension of the contractually agreed delivery dates. Without prejudice to the other provisions of the General Terms, where such an act continues for more than 180 (one hundred eighty) Days, WM shall have the right to terminate the Contract. In such a case, WM shall be reimbursed by the Customer for Works already performed/delivered in accordance with the agreed Contract prices, cost of other materials or goods reasonably ordered, any other expenditure reasonably incurred in the expectation of completing the Works as well as the reasonable costs for removal of WM’s equipment and demobilization of personnel.

7.2      The Customer agrees not to export or re- export, as the case may be, any Works (including any hardware and/or software and/or technology as well as corresponding documentation, regardless of the mode of provision and including any kind of technical support) to any other country without obtaining the necessary licenses and permits that may be required under any applicable legislation. WM shall be entitled to terminate the Contract if the Customer is in violation of applicable rules and regulations

8. Passing of Risk

8.1      Unless otherwise agreed in the contract or order confirmation, risk of loss and damage in the Deliverables shall pass to the Customer in accordance with the Ex-Works WM location Incoterms® 2010.

8.2      Where shipment is delayed for reasons beyond WM’s control, the risk shall be deemed to pass to the Customer when WM notifies readiness for delivery. WM shall be entitled to place the goods in storage and to take out insurance at the Customer’s expense against the risks of storage.

9. Retention of Title

9.1      Until fulfilment of all claims due to WM within the overall business relationship with the Customer, WM shall retain the following securities that may be released pro-rata at WM’s choice, as soon as their realisable value exceeds the claim against the Customer on a consistent basis by more than 10 %. The securities serve to secure the balance payable in the case of open accounts.

9.2      The delivery shall, unless otherwise agreed, remain the property of WM until payment has been fully effected. The Customer shall not be entitled to pledge the delivery or to assign it in security. Where a third party nevertheless acquires rights in the delivery, the Customer shall assign all subsequent rights arising over said delivery at this point to WM. WM shall accept the assignment. The Customer shall immediately inform WM when the delivery is pledged, is subject to seizure or any other third party rights of disposal.

9.3      The Customer shall handle and maintain the delivery subject to retention of title with due care. In particular, it shall insure the delivery at its own expense for replacement value against fire and water damage, any other damage, theft and destruction. The Customer shall assign all claims arising from the insurance contract to WM with immediate effect. WM shall accept such assignment. WM shall be entitled to demand evidence of the existence of insurance cover.

9.4      The Customer shall be entitled to resell the delivery supplied by WM within the ordinary course of business. In this case, the Customer shall assign all claims arising from resale of the delivery to WM. WM shall accept such assignment. However, the assignment shall only be to the amount corresponding to the invoiced value of the delivery disposed of. WM’s assigned share of the claim shall rank first.

9.5      Where the Customer duly performs its contractual obligations towards WM, it shall be entitled to collect the claims assigned to WM as security. At WM’s request, the Customer shall intimate the retention of title to the third-party purchaser and shall provide all documentation required to assert WM’s claims and furnish all requisite information. All costs of collecting claims by WM and the cost of any interventions shall be borne by the Customer.

9.6      Where the Customer delays in making payment in whole or in part, is subject to excessive debt or suspension of payments or where a petition is submitted for institution of composition or insolvency proceedings, WM shall be entitled to withdraw from the contract and demand the return of all items constituting the delivery still subject to retention of title and to take immediate possession thereof. WM shall also immediately be entitled to assert additional rights arising from the retention of title; the same shall also apply to any other significant deterioration in the Customer’s financial circumstances. The Customer shall grant WM or its authorized representative access to all its premises during business hours. WM shall be entitled to realise the items subject to retention with the diligence of a prudent businessman and shall settle outstanding claims by offsetting revenues arising therefrom. Any rights of retention vested in the Customer shall be expressly excluded.

9.7      Where the Customer processes the delivery, transforms the item, or combines it with other objects, the processing, transformation or combination shall be effected for WM. WM shall immediately become owner of the object processed, transformed or combined in due proportion to the value of the delivery (price inclusive value-added tax) in relation to the value of the other processed, transformed or combined object. Where, as a result, another part becomes the principal object, WM and the Customer agree that WM shall acquire co-ownership in the new object. The owner shall keep the new item for WM with the diligence of a prudent businessman. Retention of title shall extend to goods created by processing, transformation or combination.

9.8      Devices on loan, whether for consideration of purchase or not, do not give rise to ownership rights in the equipment.

10. Rights of the Customer in case of Complaints

10.1      WM warrants that it will perform the Services with reasonable care and skill and that the deliverables shall correspond with their contractually agreed specification at the time of delivery and will be free from defects in material and workmanship under normal use and service for a period of 36 (thirty six) months (“Warranty Period”) unless otherwise agreed from the date of delivery of the deliverables in accordance with Clause 6 or any other delivery date as explicitly agreed between the Parties.

10.2      The warranty period for any deliverables being replaced, upgraded or repaired is 6 (six) months and applies only to the replaced, upgraded or repaired part and the workmanship associated. The warranty of all other parts remains according to original delivery.

10.3      Any warranty obligation of WM shall lapse in case:
(a) of incorrect storage, handling, operation, maintenance or excessive or inappropriate use of the delivery, to the use of unsuitable tooling and resources, construction work and construction sites or improper changes, corrective maintenance work and damage to seals in the delivery or by other breach of contractual specifications and product regulations on the part of the Customer or a third party not in any way connected to WM; or
(b) of insignificant deviations from the agreed quality or minor impairment of usability which do not materially affect the use of the deliverables (which shall not be considered to be a defect); or
(c) where the deliverables consist of software: for non-reproducible software errors.

10.4      Save for the warranty obligations specified in Clause 10.1 above, all other warranties, conditions or other terms implied by law are excluded to the fullest extent permitted by law. WM specifically disclaims any implied warranties of merchantability and fitness for a particular purpose.

10.5      WM’s sole liability with regard to defects in the deliverables during the Warranty Period shall be to either repair or replace the defected Deliverables (or the relevant parts thereof) at WM’s sole discretion free of charge, or to refund to the Customer the price of the defective deliverables.

10.6      Clause 10 sets out the sole and exclusive remedy of the Customer for all warranty claims during the Warranty Period.

10.7      If not otherwise agreed between the Parties, the defective parts shall be returned by the Customer in suitable packaging to WM Carriage and Insurance Paid (CIP), agreed place, in accordance with Incoterms 2010. The cost of reshipping to the Customer (WM Carriage and Insurance Paid (CIP), agreed place, in accordance with Incoterms 2010) shall be borne by WM, except in cases as described in Clause 10.3 where the costs shall be borne by the Customer.

11. Liability

11.1      WM is fully liable for intent and gross negligence.

11.2      WM shall be liable for negligence – apart from cases of injury to life, body or health – only insofar as fundamental (cardinal) contractual obligations, i.e. basic and fundamental duties and obligation resulting from the contractual relationship which are of particular importance for the proper fulfilment of the contract or which mainly influence the existing mutual trust, especially with regard to the fulfilment of the obligations to supply and to forward important information, are infringed and such liability shall be limited to typical and foreseeable damage. The total liability shall not exceed 10% of the contract price. WM shall not be liable for any loss or profit or any indirect or consequential damages arising from or in connection with its performance under the Contract

11.3      Liability beyond that contained in these General Terms and Conditions of Sale – irrespective of the legal nature of the claim asserted – shall be excluded.

11.4      Restrictions or exclusions on liability pursuant to sections 11.2 and 11.3 shall not be applicable to statutory liability independent of fault (e.g. under the Product Liability Act), to liability under warranty that is non-fault related or if a defect was fraudulently concealed.

11.5      Insofar as WM’s liability is excluded or restricted pursuant to sections 11.2, and 11.3, the same shall apply to the personal liability of its employees, representatives, and other persons engaged in the performance of its obligations.

12. Termination for default

In the event that a Party is in default of a material obligation under the Contract (apart from delay in delivery) and fails to remedy (or, as applicable, to take sufficient action to remedy) such default within a reasonable time fixed by the non-defaulting Party (which period shall not be less than 60 Days) in a written notice drawing the attention of the defaulting Party to the default and requiring the same to be remedied, then the non-defaulting Party shall have the right to terminate the respective Contract within 60 (sixty) Days of the expiry of the period stipulated, provided that the period during which the defaulting Party shall have the right to cure such a default shall be extended as long as the defaulting Party is diligently and promptly taking actions to cure such a default. In the event of bankruptcy, receivership or comparable procedure under applicable law of a Party hereto or in case the default is not capable of being remedied, then the non-defaulting Party may terminate the Contract forthwith. Termination shall apply to such part of the Contract which remains unperformed, unless it would be manifestly unreasonable to require the terminating Party to retain the part already performed by the defaulting Party.

13. Termination for convenience

The Customer may terminate the contract for convenience upon mutual written consent after which the following shall apply in addition to any payment required by the foregoing provisions:

a) For Termination within 20 calendar days after Order placement or Conclusion of Contract, WM is entitled to a termination fee of 10% of the total contract value.
b) For Termination between 21 calendar days after Order placement and earlier than 8 Weeks before announced delivery date, WM is entitled to a termination fee of 50% of the total contract value.
c) For any Termination shorter than 8 weeks prior to the announced delivery date, WM is entitled to a termination fee of 90% of the total contract value.

14. Miscellaneous Provisions

14.1      The contractual relationship between WM and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

14.2      Unless otherwise agreed, the place of performance for all obligations relating to delivery and payment obligations shall be WM’s business premises in Holzkirchen.

14.3      The exclusive place of jurisdiction for all disputes shall be Munich.

14.4      Any changes and amendments to the contract and supplementary agreements must be made in writing. This provision shall also be applicable to any waiver to the requirement as to written form.

14.5      Should any of the above provisions become void, illegal or unenforceable, the validity of the remaining provisions shall not be affected. In such a case the void and/or illegal and/or unenforceable provision or provisions shall be replaced by such provisions that are as close as possible to the actual, legal and commercial purpose of the General Terms and Conditions of Sale in their entirety. The same shall apply where there is a gap in the General Terms and Conditions of Sale.