Kruse Electronics AG International Conditions for Supplies and Service
Version November – 2022

I. General Conditions

1. The scope, quality and all terms and conditions for the provision of any parts, equipment, documentation, works or services (collectively referred to as “Work“ or “the Work”) shall be exclusively defined by the written provisions of these conditions (hereinafter referred to as “Contract”). Terms and conditions of Customer including general terms and conditions shall apply only where expressly accepted in writing by the provider of the Work (hereinafter referred to as “Supplier”). The Contract shall be deemed to have been concluded upon receipt of Supplier’s written acknowledgement stating its acceptance of Customer’s order on the basis solely of such terms.
2. Supplier may provide partial deliveries of Work, unless the acceptance of partial Work cannot be reasonably expected from Customer taking into consideration the interests of both Supplier and Customer.
3. The obligation to deliver and/or otherwise perform the Work shall be subject to the condition that the required export licenses are issued and  that no other restrictions exist, arising from Swiss, German, European, United States of America or any other applicable export control regulations, which are to be observed.

II.  Prices And Terms Of Payment

1. Prices shall be “ex works” (Incoterms 2000) and shall exclude packing and any indirect tax, including but not limited to: property, license, sales, use, value added or similar taxes or duties applicable to the transaction or related work.
2. Customer agrees to pay or reimburse Supplier for any such taxes, which Supplier or its subcontractors or sub-suppliers are required to pay.
3. Notwithstanding Clause II paragraph 1, taxes, fees, duties, social security contributions and other charges which are levied on Supplier or its employees (including Supplier’s subcontractors and their personnel) in connection with the performance of the Contract in the country of destination of the Work, if any, shall be borne by Customer.
4. Payments shall be made to the bank account or payment office notified by Supplier free and clear of, and without any deduction, including but not limited to deductions of withholding tax unless Customer is required to  make a payment subject to such deduction. In this case the sum payable  by Customer in respect of which such deduction is required to be made, shall be increased to the extent necessary to ensure that, after the making of the required deduction, Supplier receives and retains (free from any liability in respect of such deduction) a net sum equal to the amount it  would have received had no such deduction been made. Customer shall hand over tax receipts of withholding tax paid to Supplier within four weeks after payment of an invoice, which was subject to with holding tax.
5. In the event Supplier does not receive payment from Customer when such payment has become due and payable Supplier shall be entitled to charge interest at the annual rate of 8 (eight) percentage points above the Base Lending Rate of the European Central Bank.
6. Solely with respect to this Contract, Customer may set off  only  those claims that are undisputed or have been finally determined in accordance with Clause XVI. Aforementioned rule shall apply mutatis mutandis to any right of retention of the Customer.

III. Security Interest

1. Title to the Work shall remain with Supplier until each and every claim against Customer to which Supplier is entitled under this business relationship has been duly satisfied. In the event Supplier does not retain title to a Work or any portion thereof, due to whatever reasons, including  but not limited to the applicable law, Customer grants Supplier a security interest in the Work sold to secure the payment of the price  by Customer as well as performance of all other obligation of Customer arising  under this Contract. Customer herewith authorizes Supplier to enter or notify the retention of title or, as the case may be, the security interest with public registers, books or similar records, all in accordance with relevant  laws, and shall fulfil all required formalities, at Customer’s costs and expense.
2. For the duration of the retention of title or, as the case may be, the existence of a security interest in the Work or any portion thereof, Customer shall be prohibited from giving the Work in pledge or as security, and resale shall be permissible only in the ordinary course of business and subject to the condition that Customer receives payment from its customer or retains title or, as the case may be, security interest for as long as all payment claims of Customer against its customers or clients have not been fulfilled.
3. In case of possession through legal right or process of the Work or similar acts or interventions by third  parties which may result in Supplier losing  title to or a security interest in the Work, Customer shall inform Supplier immediately thereof in writing.

IV. Time For Delivery And Delay

1. Performance of the stipulated time for delivery is subject to the timely receipt by Supplier of all required documentation, necessary permits and releases, especially of plans to be provided by Customer, as well as fulfilment of the agreed terms of payment and all other obligations by Customer stated herein. To the extent said conditions are not fulfilled on time, the time for delivery shall be extended accordingly.
2. If non-performance of any obligation of Supplier is due to “Force Majeure”, defined as impediments or other circumstances beyond Supplier’s reasonable control, then Supplier’s performance is excused and the time for delivery and/or completion is extended for the duration of the Force Majeure event and its consequences. Force Majeure events include, but are not limited to: natural disasters or catastrophic events such as epidemics, nuclear accidents, fire, flood, typhoons or earthquakes; acts or omissions by civil or military government authorities, such as foreign currency restrictions, revocation or suspension of export or import licenses, governmental priority orders, allocations or restrictions upon the use of materials or manpower; war (whether governmentally declared or otherwise), riots, sabotage or revolutions; terrorist acts, strikes or lock outs.
3. In case of delay in delivery or completion culpably caused by Supplier, Customer shall be entitled to claim a lump sum in the amount of 0,5 % of the respective delivery/service value for each full week up to a maximum of 5 % of the respective contractual delivery/service value calculated in relation to the delayed part of the works, provided however, that the Customer can prove that he has suffered losses caused by the delay at all.
4. Subject to Art. XV Nr.2 and the explicit exceptions set forth in Art. XII Nr.4, payment of such lump sums pursuant to Art. IV Nr.3 shall constitute the sole and exclusive remedy of customer for delay and under no circumstances shall the total aggregate liability of supplier exceed the lesser of 5% (five per cent) of the respective value of the delayed part of the work or €100.000.
5. If dispatch or delivery is delayed at Customer’s request by more than one month after notice was given of the readiness for dispatch by Supplier, Supplier may charge Customer storage costs for each commenced month thereafter of 0.5 % of the price of the respective Work. In the event Customer suspends the provision of the Work, Customer shall reimburse Supplier all additional costs and expenses incurred due to such suspension.
6. Cancellation of orders by customer 1 week before delivery, cancellation charge 80% of order value 4 week before delivery, cancellation charge 50% of order value 2 week after placing order, cancellation charge 30% of order value 1 week after placing order, cancellation charge 10% of order value Cancellation conditions only apply to products which are ordered based on standard lead-time. All other variations to be agreed individually.

V.  Transfer Of Risk

1. In the event the Works delivered by Supplier are erected by Customer or Customer’s subcontractors, and irrespective whether such erection is supervised by Supplier or whether Supplier advises on the erection of the Work, and/or whether the commissioning or performance tests are carried out by Supplier or with the assistance of Supplier, the risk of accidental loss and damage to the Works shall transfer in accordance with the applicable law and the latest upon delivery of the Work or any portion thereof pursuant to Clause VII or their acceptance pursuant to Clause VIII.
2. If the performance of the Work including but not limited to the dispatch, the delivery, the beginning or completion of assembly or erection, the commissioning, the trial run or the taking over by Customer is delayed for reasons within Customer’s responsibility, or if Customer has failed for other reasons to accept delivery, the risk of accidental loss or damage to the Work shall transfer to Customer on the date when it would have passed  but  for such events or failure of Customer.

VI.   Assembly And Erection

Unless otherwise agreed, Supplier does not have an obligation to assemble and/or erect.

VII.    Taking Delivery Of Hardware

1. Notwithstanding Clauses VIII and IX, Customer shall be obliged to accept delivery unless the Work is visibly and substantially defective, and Customer provides Supplier specific written notice thereof within three (3) days of delivery of such Work.
2. Upon taking delivery or receipt of shipping documents, Customer shall check the Work and shall notify the last carrier with a copy to the Supplier of any damage caused to the Work by the transport or objections regarding forwarding or transport.

VIII.    Receiving Work

The Customer shall not refuse to receive the work due to minor deficiencies.

IX.   Defects Liability

Supplier shall be liable to Customer for defects including any non- conformity with express warranties or the failure to meet guarantees as follows:

1. Supplier shall, at its option, repair any defect or reperform or replace any Work or any portion thereof that are defective provided the defect is due to circumstances that existed before the transfer of risk occurred.
2. Supplier’s warranty does not apply to defects a) which are not due to reasons beyond Supplier`s control, b) defects in expendable and/or consumable parts regularly replaced due to normal wear and tear arising after the transfer of risk, c) nonconformities caused by faulty or negligent handling, excessive strain, or other abuse by Customer or any third party, d) non-compliance with the instructions contained in the operation and maintenance manuals of the original equipment manufacturer, or e) non- reproducible software errors.
3. Except for the express warranties stated in the  Contract,  Supplier disclaims any other express or implied warranties, including but not limited to implied warranties of merchantability and fitness for  a  particular purpose, or otherwise.
4. Supplier shall not be liable a) if Customer or a third party carries out modifications or repairs to the Work, b) if Customer does not  notify  Supplier during the defect liability period in writing of a defect  without undue delay after Customer’s discovery or after Customer should have discovered the respective defect if Customer had exercised due care, c) if Customer has not immediately taken all appropriate steps to mitigate a damage caused by a defect, or d) if Customer prevents Supplier from remedying adefect.
5. Supplier shall be given adequate time and opportunity to remedy the  defect. Customer is obliged to provide Supplier with an independent and complete technical data report about the asserted defect without cost to Supplier. Customer is obliged to cooperate to the remedy of the defect. In order to clarify the necessary remedial actions, including any intended returns of the defective Work, Customer shall contact Supplier. If required by Supplier, Customer shall grant Supplier also working access to the non- conforming Work, including disassembly and reassembly. In case of  returns by Customer, Customer shall note the RMA-Number (Return Material Authorization Number) he has been told by Supplier as a clearly visible label on the outside of the package and on any  transport documents. It shall not constitute any acknowledgement of a defect if Supplier gives Customer a RMA-Number or consents to any return by Customer. Supplier reserves the right to check the asserted defect after receipt of the returned material. Customer is kindly asked to not return defective material on a “carriage forward” basis. If a defect at the time of  the passage of risk existed, Supplier will reimburse Customer any shipping costs. Costs for any technical data report are not reimbursed.
6. To the extent Supplier has incurred cost or expenses, Supplier shall be entitled to compensation in the event the defect notified by Customer to Supplier is subsequently determined to (a) not exist or (b) if Supplier is not responsible for the notified defect.
7. The defects liability period including but not limited to the defects liability period for repairs or replacement of Work under warranty shall be 12 months from the date the transfer of risk to Customer occurred.
8. The liability of Supplier in relation to any damages caused by defective supplies or services or related remedial work shall be limited to 30% of the respective value of the deliveries concerned. The aforementioned  restriction of liability shall be subject to the exceptions set forth with in Art. XII. Nr. 4.
9. Except as expressly provided in this Clause IX and subject to the exceptions set forth within Art. XII. Nr. 4, any other defects  liability remedies or claims of Customer including any right to terminate or rescind from the Contract or to obtain restitution because of a material  error/mistake concerning the Work, shall be excluded. In particular, Customer shall not be entitled to challenge the Contract for material error, including any challenge of the Contract for an error related to defects of the Work. Clause XII shall remainun affected.

X.  Intellectual Property

1. For cost estimates, drawings and all other documents (hereinafter referred to as “Documents”), Supplier reserves all rights, title and interest in all intellectual property rights including but not limited to patents or copyright (hereinafter in general referred to as “Intellectual Property Rights”).
2. In the event a third party, because of an infringement of an Intellectual Property Right by the Work asserts legitimate claims against Customer, Supplier’s liability towards Customer shall be as follows:
   (a) Supplier shall, at its own option and expense, either: (i) obtain a  right to  use the Work, (ii) modify the Work so as not to infringe the Intellectual Property Rights, or (iii) replace the relevant Work. If none of the foregoing  is reasonably determined by Supplier to be possible to accomplish,  Supplier shall take back the relevant Work and refund the price  received  for such Work.
   (b)Supplier’s obligations in Clause X paragraph 2 a) are subject to the following conditions: (i) Customer has immediately notified Supplier in writing of the claims asserted by the third party and has furnished Supplier with a copy of each communication, notice or other action relating to the alleged infringement, (ii) Customer has not acknowledged an infringement and has provided Supplier with authority, information and assistance necessary to defend or settle such claims Supplier shall determine, and (iii) Supplier is given sole control of the defense (including the right to select counsel), and the sole right to compromise and settle such claims. If  Customer stops using the Work or any relevant portion thereof to reduce the damage or for other important reasons, it shall be obliged to make it clear (in writing) to the third party that the suspended use does not mean acknowledgment of an infringement of Intellectual Property Rights.
3. Claims of Customer shall be excluded if Customer (including its agents, employees or contractors) is responsible for an infringement of Intellectual Property Rights.
4. Claims of Customer shall also be excluded if the infringement of Intellectual Property Rights was caused by specific demands of Customer, by a use of  the Work not foreseeable by Supplier or by the Work (or any portion thereof) being altered by Customer or being used together with products not provided by Supplier.
5. This Clause X sets forth Supplier’s entire liability for infringement  of  third party Intellectual Property Rights. Any further rights and remedies  of Customer (including Customer’s right to claim damages) shall be excluded.
6. Customer may use any Document or other information which contains Intellectual Property Rights and which has been provided by Supplier only for the purpose of operation and maintenance of the Work. Customer shall not disclose such Documents or information to third parties and shall not use  them for other purposes, including but not limited to the reproduction of the Work (or any portion thereof) or the engineering including but not limited to reverse engineering and/or manufacturing of any components, equipment or parts. Customer’s obligation shall survive the expiration or termination of this Contract.

XI.   Impossibility Of Performance

1. In case it is impossible for Supplier to carry out the Work for reasons  for which he is responsible, Customer shall be entitled to  terminate the contract in relation to the portion of the Work, which, owing to such impossibility, cannot be put to the intended use. The liability of the Supplier to  pay  damages shall in such case be limited to the amount of 10% of  the contractual value of the portion of the work that cannot be carried out. Claims for lump sums in relation to such portion of the works pursuant to Art. IV. 3 shall be fully deducted from any such damages claim.
2. Without prejudice to Clause IV, in case of changes of the applicable law or other relevant laws or changes of the engineering standards having a substantial impact on the content of the Work or its performance or considerably affect Supplier’s business or in case of Force  Majeure  as defined in Clause IV paragraph 2, the Contract shall be equitably adapted in order to account for the changed circumstances, including but not limited to  an increase of the total price agreed for the provision of the Work under this Contract as at the date of this Contract (hereinafter referred to as “Contract Price”). Where in the reasonable opinion of the Supplier this is not economically reasonable, Supplier shall have the right to terminate the Contract. Notwithstanding any other provision in this Contract, Supplier shall be entitled to terminate the Contract when a Force Majeure event has continued for more than 180 days. Any such termination shall be without liability to Supplier.
3. If Supplier exercises the right of termination set forth in Clause XI Nr. 2, Supplier shall notify Customer in writing without undue delay after having become aware of the significance of the event. This notification requirement shall apply even where at first an extension of the time for delivery has been agreed between the Parties.

XII.    Limitation Of Liability

Without prejudice to any other provisions of this Contract, the following provisions shall exclusively govern the liability of Supplier, regardless of the legal theory upon which it is based including but not limited to liability in Contract, in tort (including willful misconduct, negligence or strict liability), under warranty or other wise:

1. Supplier shall under no circumstances be liable for: a) indirect, consequential, incidental, punitive or special damages; b) loss of production, loss of profit or revenue, payment of interest and other financing expenses, loss  of information and data, loss of use of equipment power system, cost of purchase or replacement power; c) subject to Clause IX paragraph 8, loss of or damage to property or d) for claims by Customer for damages of Customer’s purchasers or clients.
2. Under no circumstances shall Supplier’s total aggregate liability towards Customer exceed the Contract Price or the amount of € 1 million, whichever is lower.
3. If Work is to be performed at or delivered to any location owned or operated  by a third party, and in the event such third party or property owner adjacent  to such location claims damages from Supplier for damage caused to its plant or property, Customer shall indemnify and hold harmless  Supplier against  and from any liability to said third party in excess of the limitation of liability of Supplier under this Clause XII.
4. The limitations of liability set forth in Clause XII 1, 2 and 3 above shall not apply a) in cases of willful misconduct and gross negligence of Supplier’s board of directors, but they do apply in the case of willful misconduct and  gross negligence of any other party acting for Supplier, including without limitation Supplier’s subcontractors, suppliers, agents and employees; or b) if liability is mandatory.
5. Claims for damages are subject to a limitation period of one year from the date on which the claim accrued.
6. Any and all liability of Supplier under this Contract shall cease with the expiry of the defects liability period specified in Clause IX.
7. These limitations of liability shall also apply for the benefit of Supplier’s subcontractors, suppliers, agents, advisors, directors and employees.

XIII.    Transfer

1. Prior to the transfer to a third party of the Work or of any part of the Work, Customer shall obtain written assurances from its contracting party or, as the case may be, the transferee with respect to the limitation of and protection against liability in favor of Supplier, at least equivalent to the limitation afforded to Supplier in Clause XII under this Contract. Customer shall indemnify and hold harmless Supplier against any liabilities incurred by Supplier in excess of those that would have been incurred  had Customer fulfilled its obligation arising out of this paragraph.
2. Supplier may terminate this Contract in the event that after the conclusion of this Contract Customer at any time shall come under the direct  or indirect control or direction of any other person or entity than the one that exercised this control at the time of the conclusion of this Contract.

XIV.     Confidentiality

1. Customer having received Documents, know-how, data or information (hereinafter “Information”) agrees not to reproduce or disclose such Information to any third party, without the Supplier’s prior written consent, and not to use Information for any purpose not authorized by Supplier. Customer also agrees to appropriately instruct its employees  having access to such Information of Customer’s confidentiality obligations and to duly restrict access of such Information to employees who have a need to know it in their scope of employment. Customer agrees to carefully protect Supplier’s Information, and at least with the same degree of care used in protecting its similar information. In the event Supplier  has consented  to the disclosure of Information to a third party by Customer, Customer shall procure that such third party undertakes to be bound by the confidentiality obligations imposed on Customer by this Contract and shall indemnify and hold harmless Supplier from any damage incurred through the breach of said confidentiality obligation by the third party.
2. This confidentiality obligation shall not apply to Information which: a) is or becomes part of the public domain through no fault of the Customer; b) is disclosed to Customer in good faith by a third party who has a right to  make such disclosure; or c) as evidenced by Customer’s written records, is or becomes developed independently by Customer without reliance on the Information or is or has been known to the Customer prior to its disclosure by Supplier; or d) is required to be disclosed by law, except to the extent eligible for special treatment under an appropriate protective order and subject to the Customer’s obligation to notify the Supplier of  the requirement in a timely manner.
3. Customer’s confidentiality obligation shall survive the expiration or termination of this Contract.

XV.    Termination / Suspension

1. A party shall be entitled to terminate this Contract by written notice, a) if  any proceeding is instituted against the other party seeking to adjudicate such party as bankrupt or insolvent, or if the other party makes a general assignment for the benefit of its creditors, or if a receiver is appointed on account of the insolvency of the other party, and, in the case of any such proceeding instituted against the other party (but not by the other party itself), if such proceeding is not dismissed within forty-five (45) days  of  such filing, or b) if the other party is insolvent or itself files a  petition seeking to take advantage of any law relating to bankruptcy, insolvency, winding up or composition or readjustment of debts.
2. Without prejudice to Art. XV. Nr. 1 and Art. XI. Nr. 1, customer shall only  be entitled to terminate the contract if the Purchaser – after being entitled to the maximum amount of lump sums pursuant to Art. XV Nr. 3,4 – has demanded delivery/completion of services within a reasonable final period and the final period has not resulted in delivery/completion of the respective services.
3. In the event any of the following occurs Supplier may at its option suspend the provision of its obligations under this Contract:
   (a) Customer fails to make payment of any amount within 30 days after it has become due and payable,or
   (b) Customer fails to perform its obligations necessary for the Supplier to deliver or complete the Work, or
   (c) Delivery and/or completion of the Work is prevented by export or other legally mandated restrictions for more than 6 months; or
   (d) Customer is insolvent or any proceeding as referred to in Clause XV paragraph 1 is instituted against Customer.
4. In the event Supplier suspends the provision of its obligations Customer shall pay Supplier all additional cost incurred due to such suspension.Supplier shall be entitled to take back the Work and Customer shall  be obliged to return the Work. The taking back, the assertion of the retention of title or of a security interest or the taking possession through legal right or process of the Work by Supplier shall not mean termination of the Contract and restitution, unless expressly stated by Supplier.

XVI.     Dispute Settlement / Applicable Law

1. Without limiting the right of a party to terminate  this Contract, either party  may give the other party prior written notice of any dispute arising out of or in connection with this Contract and not resolved in the normal course of business. The parties shall attempt in good faith to resolve such dispute promptly: a) by negotiations between executives who have authority to settle the dispute, or b) in accordance with the ICC ADR Rules of the International Chamber of Commerce (“ICC”). If the matter has not been resolved within thirty (30) days of the notice, then either party shall have the right to  submit the dispute to arbitration as set forth below.
2. All disputes arising out of or in connection with the Contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with the said rules. The language to be used in arbitration shall be English. The seat  of  arbitration shall be Zurich, Switzerland. The procedural law of this place shall apply where the Rules are silent.
3. This Contract, or its subject matter, shall be subject to the substantive laws of Switzerland. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.

XVII.      Miscellaneous Provisions

1. Mistakes, unintended gaps and contradictions in the Contract are to be  treated and construed in accordance with the spirit of this Contract on the basis of mutual trust and of the mutual interests of both parties.
2. In the event of any inconsistency between the English version of this Contract and any signed version or translation in another language, the  English  version shall be controlling.
3. Customer and Supplier shall each, at their own expense in their respective countries, take such steps as may be required to satisfy any laws or requirements with respect to declaring, filing, recording  or  otherwise rendering this Contract valid.

XVIII.        Export

The seller points out that goods that are marked with a dual -use number are subject to export control. Their export is permissible only with the approval of the competent Swiss authorities, and the Bureau of Export Administration, Washington. In addition, on the export of all goods, account must be taken of the national export control provisions and international embargo provisions.

The seller points out that a violation of these provisions constitutes a criminal offence.

Kruse Electronics AG International Purchasing Conditions
Version November – 2022

I. Scope Of The General Conditions

1. The scope of supply, quality and all terms and conditions for the supply of goods to us (collectively referred to as “Goods”) in context of business dealings shall be exclusively defined by the written provisions of these International Purchasing Conditions that apply to the present and all such subsequent transactions without any need of express reference thereto or agreement thereon at the conclusion of such transaction. Additional obligations assumed by the Supplier do not affect the application of these International Purchasing Conditions.
2. Terms and conditions of Supplier do not bind us, even if we do  not  explicitly object to them or if we unconditionally render performance or accept the Supplier’s performance or pay to the Supplier.
3. Terms and conditions of Supplier including general terms and conditions conflicting or differing with these International Purchasing Conditions or deviating from statutory provisions shall apply only where expressly accepted in writing byus.

II.  Conclusion Of The Contract

1. Our offers are always subject to  a confirmation by us. The Contract shall  be deemed to have been concluded upon receipt of our written acknowledgement stating its acceptance of Supplier’s Goods on the basis of these International Purchasing Conditions. The acceptance of the  Goods, the payment for Goods, our silence or any other conduct of  us  does not allow the Supplier to assume the formation of the Contract.
2. Offers of the Supplier are exempt from charge for us. If the Supplier’s offer deviates from the inquiry or order submitted by us, the Supplier will clearly point out the differences assuch.
3. We can dispatch a written acknowledgement of the order up to and including 14 calendar days after the Supplier’s offer has been submitted to us. Until this time, the Supplier’s order is irrevocable. The Supplier will inform us without any delay at least within 7 calendar days, if our written acknowledgement of the order is received with some delay.
4. The written acknowledgement of the order by us brings the Contract into effect even if – except for the purchase price and the quantity to be delivered – the written acknowledgement deviates from the declarations of the Supplier in any other way, especially with reference to the exclusive application of these International Purchasing Conditions. Differing or deviating order confirmations sent by the Supplier are of no effect without any objection by us being necessary.
5. Our employees, commercial agents or other sales intermediaries are not authorized to dispense with the requirement of a written acknowledgement of the order by us or to make promises which differ from its content. Changes to the Contract likewise require written confirmation by our purchase department.
6. After the formation of the Contract we are entitled at all times, in exchange for reimbursing the Supplier’s reasonable expenditure including a  proportion of the profit, to modify the provisions concerning the  performance due by the Supplier or to partially or totally cancel the Contract.
7. The Supplier is obliged to give written notice to us prior to the conclusion of a Contract if the Goods to be delivered are not fit without restrictions  for  the purpose provided in our purchase order or if assertions made by third parties or itself in adverts, prospectuses or other public announcements whether in or outside Germany of which the Supplier is or ought to have been aware cannot in each and every respect to complied with, if particular safety provisions are to be observed when dealing with the Goods to be delivered, or, if a risk to health, safety or the environment  is  associated with the Goods to be delivered.

III.  Obligations Of The Supplier

1. The Supplier shall fulfil all the duties imposed by the Contract, by these International Purchasing Conditions and by statutory provisions.  In addition, the Supplier shall honor the guarantees, warranties and assurances given, without these having to be evidenced in the written acknowledgement of the order. The Supplier is responsible to us for  fulfilling the duties associated with the bringing of the  Goods  into circulation in Switzerland, respective the market of destination according to  our customer in the EuropeanUnion.
2. The transport of the Goods is the sole responsibility of the Supplier. In particular the Supplier is responsible to us for the Goods being packed suitably for transportation, being loaded in a manner safe for use and transportation and being transported suitably. In addition, the Supplier is obliged to deliver the Goods cleared for unrestricted use within Switzerland and the European Union and complying with customs and import regulations in force from time to time in Switzerland. Even if INCOTERMS or  similar  clauses are agreed, the Supplier is obliged to obtain and to  hand  over to us any licences, authorizations, certificates of origin, movement and preference, other certificates or other documents useful for the free export, transit or import of the Goods as well as for receiving tax relief in the in Switzerland.
3. The Supplier shall without limitation deliver and hand over the Goods referred to in the written acknowledgement of the order which are of the quantity, quality and description required by the Contract and arrange appropriate instructions for their processing and use and in packaging. The packaging shall comply with the labelling and marking requirements, which in each case satisfy the requirements of the legal provisions, regulations and standards applicable from time to time to Goods brought into circulation in Switzerland  and shall be in accordance with the latest developments of science and engineering. In particular, the Supplier shall ensure that the Goods are not subject to deviations which could adversely affect their normal value in use or their economic value in Switzerland, or the use intended by us. Moreover, the Supplier undertakes to deliver Goods of above-average kind and  quality taking account of the tolerances customary in the trade.
4. The Supplier is not entitled to make part deliveries or to invoice them separately.
5. Up to delivery, the Supplier guarantees that the Goods are free from rights or claims of third parties, in particular those based on title, industrial property rights or any other intellectual property right which could hinder or exclude the unrestricted usability of the Goods by us or our customers in Switzerland and the European Union.
6. Every delivery must be accompanied by two delivery notes  which  clearly state the order number of the acknowledgement of the order and  for each type of Goods the applicable customs tariff number.
7. The Supplier is under a duty to fulfil his obligations promptly, in particular with regard to liability for cost and risk to hand over free house to us at the place   of delivery indicated in the written acknowledgement of the order, or in default at our place of business, the Goods together with the documents, delivery  note and invoice.
8. Strict compliance with agreed delivery dates and delivery periods shall be a fundamental obligation of the Supplier. Strict compliance with the specifications of the Goods shall be a fundamental obligation of the Supplier as well. Without prejudice to any claim or right, which we  may have against the Supplier, any delay or deviation from the specifications of the Goods must be communicated to us in writing immediately after discovery thereof, in case of a delay including the new delivery date. The Supplier is entitled to perform its obligations outside the agreed delivery dates or delivery periods only insofar as we have in each individual case agreed thereto inwriting.
9. Contractual penalties shall be paid in addition to the agreed services and may be claimed by us, even if we accept a delivery without explicit reservation insofar.
10. Any rights of the Supplier to exercise a lien or to suspend performance and to raise counterclaims are excluded, except where the corresponding claim of  the Supplier is due and undisputed or has been finally adjudicated upon or where despite written warning we have committed a  fundamental breach of  its obligations due and arising out of the same contractual relationship, and has not offered any adequate assurance.
11. Supplier is obliged to inform us in writing with a reasonable lead time of the forthcoming delivery, to use only environment-friendly packaging  materials and to collect packaging material (including but not limited to transport, sales and all other packaging) from the place of delivery indicated in the written acknowledgement of the order or in default at our place of business in Switzerland. Notwithstanding any contrary statutory provisions, the  Supplier shall at its own cost ensure the reuse and the recycling of materials or such other disposal of waste as may be prescribed. We are entitled at the  Supplier’s cost to dispose of packaging which is not taken away by the Supplier.
12. Subcontracting to third parties shall not be permissible without our written approval and shall entitle us to withdraw from the Contract and to claim damages.

IV.      Prices, Invoices, Payment Conditions

1. The agreed prices are fixed prices. Prices shall be “DDP” (Incoterms 2000) and shall include all rebates, packaging, transportation costs and any indirect tax.
2. VAT is shown on invoices as a separate item. Invoices shall clearly state the order reference, the date of the acknowledgement in the order and the numbers of every single item as well as the Supplier’s tax number. Invoices will be prepared in either Euro or an alternative currency at our discretion. Invoices, delivery notes and transportation documents  must correspond  to the details in our acknowledgement of the order, must comply with all legal requirements and have to be forwarded separately by post. Invoices that do not fulfil these conditions shall be returned. Notwithstanding our other rights, we shall have a right of retention with regard to the price until presentation of an invoice that fulfils these conditions.
3. The claim for payment does not become due until the Supplier has delivered completely the Goods and the documents indicated in the written acknowledgement of the order and a duly issued invoice to us.
4. Unlessotherwiseagreedinwriting,weshallpaythepriceless3%discount within 14 days or net within 30 days. The charges and fees in connection with the payment are to be borne by the Supplier.
5. We are allowed to pay by a transfer to a bank with which the Supplier maintains business, or by remittance of cheques.
6. The effecting of payments shall not imply acceptance of Goods or services as meeting contractual requirements.

V.      Transfer Of Risk

1. The risk attaching to Goods only shall transfer to us at the time they are received at the point of destination specified by us. The risk attaching to Goods including installation or erection and to services shall transfer to us at the time they are successfully tested for acceptance.
2. The Supplier shall bear the costs and the risk involved in the return transport or defective delivery items.

VI.      Material – Tools, Patterns, Drawings

1. Material provided by us shall remain our property and shall be stored separately, marked and kept at no costs to us. The material shall not be used other than for our orders. The Supplier shall compensate us for depreciation in value or loss.
2. The Supplier shall process or work the material for us and we  shall  become the direct owner of the new or worked item. Where this is not lawfully possible, the Parties agree that we shall at all times during the processing or working become the owner of the new item. The Supplier shall apply due and proper care in keeping the new item at no costs to us.
3. Tools, patterns, samples, models, sections, drawings, standards, forms, documents and gauges, etc. provided by us, as well as items made with or to them, shall not without our written approval be passed on the  third parties nor used for purposes other than those specified in our acknowledgement of the order. They shall be safeguarded against unauthorized inspection or use. Subject to any other rights, we are entitled to demand their return to us if the Supplier violates this clause.
4. The Supplier shall not make any information which it has acquired from us accessible to third parties unless it is generally known or the Supplier has otherwise lawfully gained knowledge of it.

VII.    Non-Conforming Goods

1. Goods do not conform to the Contract if they do not meet the requirements set out in section III. or with assertions in adverts or with  declarations  made by the Supplier to us or with other legal provisions applicable within Switzerland, unless a different term is set out in our written acknowledgement of the order or otherwise agreed.
2. In the case of subsequent transactions concerning the same type of  Goods, the confirmations, references or other declarations made by Supplier continue to apply, without the necessity to be mentioned again.
3. Goods shall be in accordance with the state of the art.
4. Quantities deviating from our acknowledgement of the order may be returned totally or partly byus.
5. With the exception of obvious non-conformities, the duty to examine the Goods only arises when they are processed or used by us, at the latest, however, six months after their handing-over to us. The duty to examine exists only in respect of typical deviations of a factual kind in type, quantity, quality and packaging of the Goods delivered, but not in respect of compliance with legal rules. The examination shall be limited to spot  checks undertaken by us. In the case of delivery in instalments or of part- deliveries, the examination of individual deliveries shall suffice. In any case the use of our usual methods of examination shall be sufficient. The consulting of experts, damage assessors, inspection offices or other external third parties is not required.
6. We shall give notice of obvious non-conformities within 10 working days after the handing-over of the Goods to us. In any other case, we shall give notice of non-conformities known to us or discovered by means of an examination within 20 working days after our knowledge thereof  and  having the examination closed. Notice shall be given to the Supplier or to his sales intermediary. The notice will describe the non-conformity in general terms; greater detail as to the type of non-conformity or the extent of the Goods affected is notrequired.
7. Without prejudice to any other rights, in the case of deliveries of non- conforming Goods to us we are entitled to request delivery of substitute Goods or repair at our choice and to be reimbursed for any wasted expenses, even if the breach of contract is not fundamental. A request for delivery  of  substitute  Goods  and   repair  shall  be  made  at  the   latest  6 months after the notice of the non-conformity toSupplier.
8. Without prejudice to any other rights, we shall be entitled to carry  out repairs or cause them to be carried out at the Supplier’s expense if delivery is effected after a reasonable period set or if we have a special interest in the immediate execution of performance. We will endeavor to notify preliminarily the Supplier.
9. The limitation period for us in actions for breach of warranty shall be three years unless the relevant laws and regulations provide for longer period of warranty.
10. Whilst the Supplier is investigating the existence of a non-conformity or is trying to correct the same, the running of the limitation period shall be suspended. Our notice of defects to the Supplier shall suspend the limitation  of period as well. In no case shall the limitation period expire before the expiration of six months from the giving of notice of thenon-conformity.
11. The period of limitation for remedies of us against the Supplier with respect to a violation of third parties` industrial property rights is tenyears.

VIII.    Avoidance Of The Contract

Without prejudice to other legal rights, we are entitled to avoid the Contract in whole or in part without compensation if the Supplier objects to  the  application of these International Purchasing Conditions, if the written acknowledgement of the order is received by the Supplier more than 14 calendar days after its date of printing, if insolvency proceedings are applied for or commenced relating to the assets of the Supplier, if  the  Supplier without providing a reason justifiable in law does not meet fundamental obligations due towards us, if we due to the delivery  of  non-conforming Goods are entitled to remedies according to these International Purchasing Conditions, if a breach of Contract committed by the Supplier is not fundamental and an additional period of time for performance set by us has expired without a sufficient result, or if for other reasons we cannot be expected the Supplier to fulfil its obligations.

IX.    Damages

1. The Supplier is entitled to claim damages from us in case of late payment without justification. Damages amount to a flat interest rate of 2 % per annum above the interest rate of the European Central Bank for main refinancing operations (minimum bid rate) of the currency in which payment is due applicable during the unjustified retention of payment. With the exception of damages due to intentional harm or gross negligence and with the exception of damages due to blameworthy injury to life, body or health, any claim  on  any other ground to damages, to further interest or to an indemnity against  any other kind of damages is excluded.
2. Without any restriction and in accordance with the legal requirements, we are entitled to claim damages from the Supplier instead of or in addition to any other remedy. The taking of delivery of the Goods without any reservation shall not result in a waiver of the right to damages. Without prejudice to any further reaching legal rights, the quantum of damages to be compensated shall comprise all direct and indirect expenses, losses and inconveniences caused to us by the breach of contract, unless the Supplier proves that the extent of damages was not foreseeable at the time of formation neither of the Contract nor during its performance. Without prejudice to the Supplier proving that damage was either not caused or was caused in a significantly smaller size, and without prejudice to us claiming further damages, in each case of late delivery by the Supplier we are also entitled to claim contractual penalties of 0,5 % for each week of delay commenced, up to a maximum of 5 % of the value of the respective Goods, without any evidence being necessary.

X. Other Provisions

1. On handing over, the Goods as well as all connected papers and documents become in principle the unrestricted property of us. If a reservation of title in favor of the Supplier has been agreed, this has for the time being the effect  of a simple reservation of title; We are, however, entitled regardless of the reservation of title, to utilize the Goods at any time without any restrictions, namely by using the Goods and/or selling them, as well as by transferring property in the Goods to third parties, even when such utilization by us has  the consequence of destroying the reservation of title.
2. Without prejudice to us continuing claims, the Supplier will indemnify us without limit against all claims of third parties which may be brought against  us based on product law or product liability law or  similar provisions, insofar as the product was delivered by the Supplier or contained materials or parts delivered by the Supplier and in lieu of us the Supplier itself could be held liable. In particular, the indemnification also includes compensation for expenses incurred by us and the costs of any (precautionary) recall campaign and is granted by the Supplier waiving further conditions or other objections,  in particular without requiring compliance with any duty of examination, giving notice, supervision or recall, and waiving any defense of  limitation. Irrespective of any additional claims of us, the Supplier shall maintain product liability insurance with an adequate cover figure.
3. Without prejudice to our continuing claims, the Supplier shall  give  us unlimited security or compensation on first demand and waiving all further conditions or other defenses, in particular waiving the observing of all duties  of examination, notifying, control or recall or the prior taking of administrative or legal proceedings, as well waiving the defense of limitation, if in consequence of an administrative order we are threatened with  detriment or if we are subject to administrative fines or if we learn of other detriment and the administrative order is based on provisions of product law, the observance of which is according to the provisions of this International Purchasing Conditions within the Supplier’s sphere of obligation. The same applies, if we are obliged on the basis of applicable statutory provisions to recall Goods, which have been delivered by the Supplier or which contain parts delivered by the Supplier, if these are the cause of the recall of the Goods.
4. In relation to pictures, drawings, calculations and other documents as well as computer-software, which have been made available by us in a material or electronic form, the latter reserves all proprietary  rights,  copyrights, other industrial property rights as well as know-how rights.

XI.    General Terms

1. The place of performance and payment for all obligations arising from the legal relationship between us and the Supplier is Cham, Switzerland.
2. If provisions of these International Purchasing Conditions should be or become partly or wholly ineffective, the remaining arrangements will continue to apply. The parties are bound to replace  the  ineffective provision with a legally valid provision, as close as possible to the commercial meaning and purpose of the in effective provision.
3. All communications, declarations, notices etc. are to be drawn up exclusively in German or English. Communications by means of fax or e- mail fulfil the requirement of being inwriting.
4. Place of jurisdiction is exclusively Cham, Switzerland. This clause shall not preclude us from our right to file a dispute with the competent court  referring to the place of business of the Supplier.
5. The legal relationship between us and the Supplier shall be governed by  the United Nations Convention on the International Sale of Goods as of 1 April 1980 (UN Sales Convention/CISG). Outside the application of the UN-Convention, the legal relationship between the parties is exclusively governed by Swiss law.