General Delivery- and Performance Conditions
of the IMKO Micromodultechnik GmbH

Version: April 2018

I. General

1. Scope of Application

The following terms and conditions apply exclusively to all deliveries and services, including future ones, unless otherwise agreed in writing. The customer's terms and conditions shall only apply if we agree to them in writing.

2. Applicable Law and Legal Venue

2.1 German law shall apply. The UN convention on contracts for the international sale of goods (CISG) is excluded.

2.2 For all disputes out of the underlying contracts, the place of our registered office shall be the legal venue. We are however also entitled to file suits at the place of the registered office of the customer.

II. Deliveries

1. Quotations

1.1 Our offers are subject to change. Contracts are only concluded upon our written order confirmation or delivery.

1.2 Our employees are not authorised to make verbal side agreements or commitments that go beyond the content of the written contract or amend these General Terms and Conditions of Delivery and Service to our disadvantage.

1.3 The technical data, illustrations, drawings, weight and dimension specifications included in the offer are non-binding unless they are (i) expressly designated as binding or (ii) essential.

1.4 All quotations are subject to change in terms of the con-struction, in so far as the same are expedient.

1.5 The customer is responsible for checking the suitability of our goods for their intended use.

2. Transfer of Risk, Dispatch, and Delivery Period

2.1 Unless otherwise agreed, delivery shall be made in accordance with EXW at the location specified in the order confirmation (Incoterms® 2010). The risk shall also pass to the customer in accordance with EXW at the location specified in the order confirmation (Incoterms® 2010) if, in exceptional cases, we have assumed other services, such as shipping costs or shipping (including by our own transport personnel) and installation.

2.2 If it has been agreed that we will take care of shipping, we will choose the safest and most cost-effective solution at our discretion.

2.3 The delivery period shall commence upon dispatch of the order confirmation, but not before all details of the order execution have been clarified and the documents and approvals to be provided by the customer as well as an agreed down payment have been received.

2.4 Should there be a delay of the dispatch due to circum-stances that we are not responsible for:

• The risk shall pass to the customer on the agreed delivery date, but no later than when the goods are made available for dispatch.
• The customer´s obligation to accept and pay the goods remains unaffected hereof,
• We are entitled to invoice,
• We shall store the goods at the risk and the costs of the customer; in the event that we store in our respective production site, we shall charge at least 0.5% of the in-voice amount of the stored delivery per month,
• we shall be entitled, after setting a reasonable grace period and its fruitless expiry, to withdraw from the contract and claim damages in lieu of performance.
• the customer shall bear in particular the costs and risks arising from any delay in issuing instructions and completing necessary formalities for which he is responsible.

2.5 Any changes demanded by the customer shall lead to the appropriate prolongation of the delivery period until we have verified the feasibility of the same by a period required for the implementation of the new specifications in the pro-duction.

2.6 In the event of a delay in delivery, our liability shall be limited to 0.5% per completed week of delay, but to a maximum of 5% of the net invoice amount of the part of the delivery affected by the delay, in the event that we, our legal representatives or vicarious agents have acted with simple negligence. The claim for damages in lieu of performance pursuant to clause 10 remains unaffected.

3. Force Majeure

3.1 Unforeseen, unavoidable events for which we are not responsible (e.g. in particular force majeure, strikes, lockouts, operational disruptions, difficulties in procuring materials and energy, transport delays, measures taken by authorities and obstacles due to national or international regulations, as well as difficulties in obtaining permits, in particular import and export licences) shall extend the delivery period by the duration of the disruption and its effects. This shall also apply if the obstacles occur at our suppliers or during an existing delay.

3.2 If the hindrance is not only temporary, we shall be entitled to withdraw from the contract. If, as a result of the delay, the customer cannot reasonably be expected to accept the delivery, he may withdraw from the contract by giving us written notice.

4. Reservation and Obtaining Permits

4.1 If we are responsible for obtaining permits, in particular for the export/transfer/import of our goods, our deliveries (contract fulfilment) are subject to the proviso that there are no obstacles to obtaining a permit due to national or international regulations, in particular export control regulations, embargoes or other sanctions. In this case, the customer undertakes to provide us with all information and documents required for export/transfer/import.

4.2 If a necessary approval requested by us is not granted, the contract shall be deemed not to have been concluded with regard to the delivery affected by this.

4.3 It is expressly pointed out that under no circumstances are we responsible for obtaining the authorisation referred to in 4.1 after our delivery has taken place (in particular in the event of resale of the goods by the customer).

5. Partial Deliveries

We are entitled to deliver in part in so far as this is within a reasonable scope.

6. Prices and Payment

6.1 Unless otherwise agreed, prices are EXW at the location specified in the order confirmation (Incoterms® 2010), net in euros, excluding the applicable value added tax.

6.2 Payments must be made within 30 days of the invoice date without any deductions to our paying agent. Payments shall only be deemed to have been made to the extent that we can freely dispose of them at a bank. We only accept cheques and bills of exchange on account of payment; discount and expenses shall be borne by the customer. They are due immediately.

6.3 In the event of late payment, we shall charge interest on arrears at a rate of 9 percentage points above the base rate, but at least 10%, without issuing a reminder.

6.4 should there be any reasonable doubts regarding the sol-vency of the customer, e.g. due to slow pace of payment, default of payment, the protest of a check or a bill, we shall be entitled to demand security or cash payment on a deliv-ery versus payment basis. Should the customer not react to this demand within a reasonable period, we shall be entitled to withdraw from the not yet fulfilled part of the delivery contract. The fixation of a period of grace can be omitted should customer is apparently not capable of providing security, e.g. insolvency proceedings have been initiated over the assets of the customer.

6.5 The customer is only entitled to offset or assert a right of retention in so far as his counterclaims are undisputed, have been legally established or ready for decision.

7. Retention of Title

7.1 We reserve the right to reserve the title of ownership in the goods provided by us until the reception of all payments out of the business relationship with the customer. Should there be a current account relationship, the retention of title shall also apply to the acknowledged balance.

7.2 Processing and modification of the reserved goods by the customer is performed for us without obligating us. In the event of mixing or connecting with other goods, we shall ac-quire co-ownership in the new goods at a quota of the in-voice value of the reserved goods to the other materials.

7.3 The customer may only sell the reserved goods in the course of ordinary business and may neither pledge nor as-sign the same as security. The customer undertakes to im-mediately notify us should any access by third parties. Any costs effected by the defense of an access shall be covered by the customer in so far as the same can not be retrieved from the third party.

7.4 The customer is obligated to sufficiently insure the re-served goods against loss and damage at the new value. The confirmation of the insurance, as well as proof of having paid the premium, is to be forwarded to us upon request. Any claims out of these insurance contracts are already now as-signed by the customer to us.

7.5 The customer already now assigns to us any claims out of the resale of the reserved goods to the full extent as secu-rity.

7.6 The customer is entitled to collect the claims assigned to us himself. The right to use and sell the reserved goods, as well as the right to collect the claims shall lapse in the event of default in payment, insolvency proceedings are initiated, or if he has ceased his payments. In these cases, the cus-tomer is no longer entitled to further process the goods.

7.7 In the cases depicted in Section 7.6, the customer must enable us to retrieve the reserved goods and to notify us of the assigned claims and their debtors, to notify his custom-ers of the assignment of the claims, and to forward to us any information and documents required to collect these claims. We shall be entitled to disclose the assignment to his cus-tomers. The retrieval of the reserved goods does not repre-sent a withdrawal from the contract. Should we declare withdrawal, we shall be entitled to utilise the goods at our discretion.

7.8 If the value of the provided securities exceeds our claims by more than 10%, we shall, upon request of the customer, release securities at our discretion.

8. Documents and Confidentiality

The customer undertakes to not disclose any and all infor-mation (in particular details of our quotations, such as tech-nical solutions, prices and conditions etc., as well as samples, drawings and other company and operational secrets which he has intentionally or incidentally received from us), not to make these accessible to third parties, and also not use these himself for own or third-party purposes. We reserve all pro-prietary rights and copyrights in this confidential infor-mation.

9. Liability for Defects

9.1 Apparent defects at the delivered goods must be re-ported to us immediately after receiving the goods, hidden defects immediately in writing after they are detected.

9.2 Should the customer send goods that has already come in contact with medium back to us to process the reclama-tion, for the sake of the safety of our personnel, the follow-ing shall apply:
The customer shall confirm in writing that the goods have been cleaned thoroughly and is free of any residual material that would represent a hazard. This written confirmation must be attached to the exterior of the dispatch packaging. The goods shall exclusively only be checked and processed if such confirmation has been provided.

9.3 In the event of a justified reclamation, the following shall apply:

At our discretion, we shall either repair or provide a re-placement. Should the repair fail, the customer is enti-tled to demand a price reduction or – in the event of sig-nificant defects – withdraw from the contract. Should the subsequent fulfillment fail, the customer also has the right, according to Section 10, to demand damages in-stead of performance.

b) Any costs of the subsequent performance which are in-curred due to the fact that the purchased goods were brought to any other place than the place of business of the customer shall not be assumed.

c) A claim for reimbursement of the costs for disassembly and assembly shall not exist, if we are not responsible for the defect.

9.4 Beginnt die Verjährungsfrist aufgrund eines Mangels erneut, gilt ebenfalls die in Ziffer 10.3 festgelegte Verjährungsfrist von 12 Monaten. Der Neubeginn der Verjährungsfrist gilt ausschließlich für das von dem Mangel betroffene Teil (z.B. elektronische Teile etc.).

9.5 In the event of an unjustified reclamation, we reserve the right to charge the costs incurred (also internal) by the rec-lamation.

10. Liability General

10.1 We shall be liable for intent, gross negligence, malicious non-disclosure of defects, loss of life, bodily harm or harm to the health, or according to the product liability law in accord-ance with the law. In the event that we have assumed a guarantee, we are liable according to possibly existing guar-antee provisions.

10.2 In the event of simple negligence, we shall only be liable for the infringement of an essential contractual obligation, the compliance with which enables the performance of the contract in terms of a condition sine qua non and in the per-formance of which the customer reasonably trusts and may trust, and the infringement of which endangers reaching the purpose of the contract, but – in so far as not ruled otherwise in Section 2.6 for delay damages – limited to the replace-ment of the foreseeable and contractually typical damage. For all other events, our liability is excluded.

10.3 Claims of the customer due to defects lapse after a pe-riod of 12 months as of the time the risk is transferred, as do any other claims as of the beginning of the statutory limita-tion period.
Deviant to Clause 1 of this Section 10.3, in the event that we are liable due to assuming a guarantee, the guarantee provi-sions shall apply and in the event of the malicious non-dis-closure of a defect, as well as in the event of claims for dam-ages according to the product liability law, the loss of life, bodily harm, or harm to the health, and the intentional and grossly negligent infringement of obligations, the statutory provisions of limitation shall apply.

11. Place of Fulfillment

The place of fulfillment for all deliveries is the place desig-nated in our order confirmation – for payments it is the place of our registered office.

III. Performances

At all performances we render for customers, in particular consultancy Helpdesk Service, engineering, initial commis-sioning, maintenance, repairs, calibration, installation, ad-justments or operation of the components purchased from us or to be purchased from us (in the following referred to as „performances) the following provisions shall apply:

1. Quotation and Performance Scope

1.1 We determine the scope of our performances in our quo-tation.

1.2 The source code shall only be part of the performance scope, if this has been agreed in writing.

1.3 For the rest, Part II, Section 1 shall apply accordingly.

2. Implementation of the Performances

2.1 We shall be entitled to implement the performances us-ing third parties (experts, sub-contractors).

2.2 The customer shall not be entitled to demand the imple-mentation of the performances by a certain staff member unless the same has been agreed in writing. The nomination of an employee in the quotation text and the order confir-mation does not meet these requirements.

2.3 The customer has no right of instruction in regard to the employees deployed by us nor in regard to any third party.

3. Period of the Service Performance, Place of the Service Performance and Working Hours

3.1 The Sections 2.3, 2.5 and 2.6 of Part II shall accordingly apply to the provision of performances.

3.2 The period for the provision of performances shall be reasonably prolonged, in so far and for so long as the cus-tomer does not properly comply with his obligations to co-operate.

3.3 Should the provision of the performances be delayed due to reasons we are not responsible for,

• The customer remains obligated to accept and pay the performances,
• We are entitled to invoice,
• we shall be entitled, after setting a reasonable grace period and its fruitless expiry, to withdraw from the contract and claim damages in lieu of performance.

3.4 Should it be necessary, upon request of the customer, to delay the date for the performance, we are entitled to charge the occurred and effected costs (also internal) (e.g. travelling cost occurred by us or third parties) generated in the light of the agreed date.

3.5 We shall determine the location of work and the working hours a tour own discretion. Doing so, we shall take the jus-tified regards of the customer we were timely notified of in writing into consideration.

4. Cooperation Obligations of the Customer

4.1 The customer shall ensure that all requirements for the provision of the performances are met and all respectively required documents are forwarded in time, and all infor-mation is provided, and that we are informed of all relevant procedures and conditions. This also applies to all relevant documentation, information, and conditions that evolve during the provision of our performances.

4.2 The customer is obligated to confirm to our employees the effected working hours in writing at the end of every work day.

4.3 In so far as the performances are provided in the prem-ises of the customer, the customer shall provide us with suf-ficient working space free of charge and shall provide us with access to the required (IT) systems.

4.4 The customer is exclusively responsible for the provision of – in particular of official nature - permits which are re-quired for the provision of the performances.

4.5 Should the customer not properly comply with the coop-eration obligations stated in this Section 4 or other coopera-tion obligations, and should this generate delays and/or ad-ditional costs, we are entitled to reasonably adjust the remu-neration as well as the agreed periods.

5. Renumeration

The agreed remuneration shall apply. Should we provide performances without prior agreement of the remuneration, the usual remuneration shall apply plus the respectively ap-plicable VAT, as well as all incidental costs such as travelling costs, travelling time, expenses and accommodation costs etc.

6. Liabilities

6.1 In so far as it has not been agreed otherwise, we do not assume the responsibility to achieve a certain achievement at the provision of performances.
We do however undertake to provide the performances in compliance with the proper care customary in the trade and the generally accepted rules of engineering.

6.2 In so far as we exceptionally do assume the responsibility for a certain achievement at the provision of performances, the following shall apply:

• Section 10 of Part II shall apply accordingly,
• An acceptance must be performed according to § 640 BGB (German Civil Code). In so far as it has not been agreed otherwise, the customer is obligated to perform the acceptance immediately, at the latest however within 14 days after he has been informed of completion by us. Should the customer not confirm acceptance and never-theless utilise the performances or objects the perfor-mance was provided at, the acceptance shall be deemed as confirmed, in so far as the customer has only made reclamations regarding non-essential defects.

7. Right in the Performances and Results

The customer shall, with the complete payment of the agreed remuneration, acquire a non-exclusive not transfer-rable right of use that is unrestricted in space and time within the scope of the contractually determined intended use in the results we achieve within the scope of the perfor-mances. Apart from that, all rights shall remain with us.

8. Supplementary Provisions

Apart from that, the provisions under Sections 3, 6, 8, 10 and 11 from Part II shall apply accordingly to the performances.