General Terms and Conditions (GTC) of ZETTLER electronics GmbH

(Terms of Sale)
(as of January 1, 2013)

§ 1 General provisions

(1) All our deliveries, services and offers are made exclusively on the basis of these terms and conditions, even without express mention during negotiations. We do not recognize conflicting terms and conditions, even if we do not expressly object or if we refer to letters from the contractual partner in which reference is made to their terms and conditions. Our terms and conditions apply to all contracts with entrepreneurs, legal entities under public law and special funds under public law, including for all future business relationships, even if they are not expressly agreed again. Our terms and conditions are deemed to have been accepted upon acceptance of the goods at the latest.
(2) Terms and conditions of the customer that conflict with or deviate from our terms and conditions only apply if we have expressly agreed to their application in writing.

§ 2 Offer, conclusion of contract and documents

(1) Our sales staff are not authorized to make oral side agreements or assurances that go beyond the content of the written contract. All agreements contained in this contract are set forth in the written contract documents. No oral side agreements exist.
(2) Delivery times are approximate and non-binding unless their binding nature has been expressly promised. Information on the delivery item (e.g., technical data, tolerances, dimensions, weights, etc.) and its representation are merely descriptions and markings that are only binding if we expressly confirm this. We reserve the right to make technical and design changes to the delivery items that are customary in the trade, provided they do not unreasonably impair the customer and do not affect the usability of the purchased item.
(3) Our offers are subject to change until the contract is concluded.
(4) We reserve ownership and copyright to design drawings, samples, cost estimates, and similar company items, whether tangible or intangible. They must always be treated as strictly confidential. They may not be made accessible to third parties without our consent. In the event of a breach of these obligations, the customer shall be fully liable to us in accordance with statutory provisions. Reference advertising using our name and similar materials is only permitted with our prior consent.

§ 3 Prices

(1) Our prices are ex works (Incoterms 2010, EXW Puchheim). Unloading and storage are the responsibility of the customer. The statutory value-added tax applicable on the invoice date will be added to the prices. The costs of any agreed transport or similar insurance shall be borne by the customer, unless otherwise agreed. In the case of partial deliveries, each delivery may be invoiced separately.
(2) If changes to the price basis occur on a delivery date four months after the conclusion of the contract (e.g.,
price increases for raw materials, materials, labor, transport, or storage costs), we reserve the right to adjust the price accordingly after informing the customer. The price increase can only be claimed by us within two months of the aforementioned price increases occurring. The individual cost elements and their increases must be appropriately weighted when determining the new price. Should individual cost elements increase while others decrease, this must also be taken into account when determining the new price.
(3) If no prices have been agreed upon at the time of conclusion of the contract, our prices valid on the day of delivery shall apply.

§ 4 Terms of payment

(1) Unless otherwise stated in the order confirmation (or alternatively the invoice), the price is due for payment (without deduction) within 10 days of the invoice date.
(2) If the customer defaults on payment, we are entitled to charge default interest at a rate of 8 percentage points above the base interest rate. We may prove and invoice higher interest losses at any time. In the event of default in payment, we are also entitled to revoke any agreed rebates, discounts, and other benefits. We are entitled to make further deliveries only against advance payment.
(3) Failure to comply with the terms of payment, default, or circumstances likely to reduce the customer’s creditworthiness will result in all our claims becoming due immediately.
(4) The customer is only entitled to offsetting if his counterclaims have been legally established, are undisputed, or have been recognized by us.
(5) The customer is entitled to exercise a right of retention to the extent that his counterclaim
is based on the same contractual relationship or the counterclaim is recognized, legally established, or ready for decision.
(6) We are not obligated to accept bills of exchange and checks. Credit notes in this regard are always subject to redemption (in payment, not in lieu of performance); they are issued with a value date on the day on which we can dispose of the equivalent amount. Bills of exchange will be credited subject to the discount charged to us upon forwarding, stamp duty and bank fees, and, if applicable, collection charges.
(7) We reserve the right to assert further contractual or statutory claims in the event of default.

§ 5 Delivery modalities and delivery obstacles

(1) The delivery period begins with the dispatch of the order confirmation, but not before the provision of the documents, approvals and releases to be provided by the customer, as well as before receipt of an agreed down payment and clarification of all technical questions.
(2) The delivery period is met if the delivery item has left the factory or readiness for dispatch has been communicated by the expiry of the delivery period.
(3) In the event of unforeseen obstacles beyond our control that we could not avert despite exercising reasonable care under the circumstances of the case – regardless of whether they occur with us or a subcontractor – such as force majeure (e.g. war, fire and natural disasters), delays in the delivery of essential raw materials, etc. – we are entitled to extend the delivery period by the duration of the obstacle. We are entitled to the same rights in the event of a strike or lockout at our company or that of our suppliers. We will notify the customer of such circumstances immediately and promptly reimburse any services already provided by the customer. Should the impediment lead to a delay of more than one month, we also have the right to withdraw from the delivery contract in whole or in part.
(4) Correct and timely self-supply is reserved. We will notify the customer of any delays. If we do not receive correct or timely deliveries from our suppliers and we are not responsible for this, the delivery time will be postponed by a corresponding period. In this case, we can also declare withdrawal from the contract with regard to the undelivered items if the delivery time should be extended by more than one month due to the incorrect or timely self-supply. To the extent permissible under competition law, we will assign to the customer our claims against the supplier due to the non-contractual delivery. Further claims for damages and reimbursement of expenses by the customer against us are excluded.
(5) In the event of a delay in delivery, the customer may withdraw from the contract after a reasonable period of grace has expired without result; in the event of our impossibility of performance, the customer shall also be entitled to this right without setting a deadline. Claims for damages (including any consequential damages) are excluded, notwithstanding paragraph 6 and § 9, which do not intend to reverse the burden of proof; the same applies to reimbursement of expenses.
(6) If a fixed-date transaction has been agreed, we shall be liable in accordance with the statutory provisions; the same shall apply if the customer can assert that his interest in the contract fulfilment has ceased due to the delay for which we are responsible.
(7) If shipment is delayed at the customer’s request, he will be entitled to compensation for the delay, starting one week after notification of the delay.
Readiness for dispatch, the costs incurred by storage will be charged.

§ 6 Transfer of risk, acceptance of goods and partial deliveries

(1) In the case of a collection obligation, the risk shall pass to the customer upon separation of the goods and their provision as agreed.
The same applies to deliveries upon handover to the transport person. In the case of deliveries, the risk shall
pass when the goods leave our factory premises. The same applies in the event of default by the creditor.
(2) Delivered items must be accepted by the customer, even if they have minor defects, without prejudice to their rights under Sections 8 and
9. Partial deliveries are permissible provided they are reasonable for the customer. (3) Ordered quantities must be accepted by the customer.
(4) If quantities ordered or advised by the customer are to be reduced at the customer’s request
, the following applies at least: a. Goods already ordered by us based on the quantities advised by the customer must be accepted by the customer.
b. Acceptance must take place no later than three months after the originally requested date.

§ 7 Retention of title

(1) The goods remain our property until payment is received. In transactions with entrepreneurs, we retain title to all delivered goods until the customer has paid all current and future claims arising from the business relationship. This retention of title also applies to spare or replacement parts such as engines, control units, etc., even if they are installed, as they do not become essential components within the meaning of Section 93 of the German Civil Code (BGB). When using the check-bill of exchange procedure, our retention of title continues even after check payment until we are released from liability for the bill of exchange. In the case of a current account relationship (business relationship), we retain title until all payments from the existing current account relationship have been received; the retention of title refers to the recognized balance; in these cases, the provisions of this Section 7 apply accordingly.
(2) In the event of a breach of contract by the customer, in particular in the event of late payment, we are entitled to take back the goods after setting a deadline without success. Mere withdrawal shall only be deemed a withdrawal from the contract if a reasonable period of time set by us for performance has expired without result and withdrawal has been expressly declared. The costs incurred by us as a result of the withdrawal (in particular transport costs) shall be borne by the customer. We are further entitled to prohibit the customer from any resale, processing, combining, or mixing of the goods delivered under retention of title and to revoke the direct debit authorization (Section 7 V). The customer may only demand delivery of goods taken back without an express declaration of withdrawal after full payment of the purchase price and all costs.
(3) The customer may not pledge, transfer, or assign the delivery item or the claims replacing it as security. In the event of attachments or other interventions by third parties, the customer must notify us immediately in writing so that we can file a lawsuit in accordance with Section 771 of the Code of Civil Procedure (ZPO). The customer shall bear any remaining costs of this lawsuit despite a victory in the legal dispute pursuant to Section 771 of the Code of Civil Procedure (ZPO).
(4) The purchaser is entitled to resell, process, or mix the purchased goods in the ordinary course of business; in doing so, however, the purchaser hereby assigns to us all claims arising from the resale, processing, mixing, or other legal grounds (in particular from insurance or tortious acts) in the amount of the final invoice amount agreed with us (including VAT), as well as all ancillary rights. If the delivered goods are our co-ownership due to retention of title, the assignment of the claims shall be in proportion to the co-ownership shares. If the delivered goods are sold together with third-party goods that are not the property of the purchaser, the resulting claims shall be assigned to us in the ratio corresponding to the final invoice amount of our goods to the final invoice amount of the third-party goods. If the assigned claim is included in a current invoice, the purchaser hereby assigns to us a corresponding portion of the balance (including the final balance) from the current account; If interim balances are drawn and their carryforward has been agreed, the claim to which we are entitled from the interim balance according to the above provision shall be treated as assigned to us for the next balance. The customer remains authorized to collect these claims even after the assignment, whereby our authority to collect the claim ourselves remains unaffected. However, we undertake not to collect the claim as long as the customer meets its payment obligations from the proceeds received, is not in default of payment, and no application for the opening of insolvency proceedings has been filed or payments have been suspended. Should this be the case, however, the customer must inform us of the assigned claims and the debtors upon request, provide all information necessary for collection, hand over the relevant documents and notify the debtor (third party) of the assignment. This also applies if the customer resells, processes or mixes the purchased item in breach of contract.
(5) The retention of title also extends to the products resulting from the processing or transformation of our goods, at their full value; these operations are carried out for us, so that we are deemed to be the manufacturer. If the processing or transformation takes place together with other goods that do not belong to us, we shall acquire co-ownership in proportion to the objective values ​​of these goods; it is hereby agreed that in this case the purchaser shall carefully store the goods for us. If our reserved goods are combined with other movable items to form a single item or are inseparably mixed, and the other item is to be regarded as the main item, the purchaser shall transfer to us proportionate co-ownership, insofar as the main item belongs to him; the purchaser shall store the resulting (co-)ownership for us. In all other respects, the same applies to items thus created as to those delivered subject to retention of title.
(6) To the extent that the validity of the retention of title is subject to special conditions or formal requirements in the country of destination, the purchaser shall ensure that these conditions are met.

§ 8 Liability for material and legal defects

We are liable for defects in the delivery as follows, provided the customer is a merchant, but only in the event of proper fulfillment of the
inspection and complaint obligations under Section 377 of the German Commercial Code (HGB) (the complaint must be made in writing):
(1) If there is a defect in the purchased item, we are entitled, at our discretion, to remedy the defect or to deliver a defect-free item (subsequent performance). The prerequisite for this is that the defect is not insignificant. Should one or both types of subsequent performance be impossible or disproportionate, we are entitled to refuse it. We can refuse subsequent performance as long as the customer does not fulfill his payment obligations to us to an extent that corresponds to the defect-free part of the service. In the case of subsequent performance, we will only bear the expenses up to the amount of the purchase price, provided that these do not increase as a result of the purchased item being transported to a location other than the place of performance. We will bear the expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor and material costs; Any liability for costs is excluded to the extent that additional costs arise from transporting the item to a location other than the place of performance.
(2) Should the subsequent performance referred to in paragraph 1 be impossible or fail, the customer shall have the right to choose either to reduce the purchase price accordingly or to withdraw from the contract in accordance with the statutory provisions; this shall apply in particular in the event of culpable delay or refusal of subsequent performance, as well as if this fails a second time. Further claims by the customer, regardless of the legal basis, are excluded or limited in accordance with Section 9.
(3) No warranty is assumed for damages resulting from the following reasons: unsuitable or improper use, faulty assembly by the customer or third parties, natural wear and tear, faulty or negligent handling, excessive strain, unsuitable operating materials, defective construction work, chemical, electrochemical or electrical influences (unless we are responsible for them), improper modifications by the customer or third parties carried out without our prior approval.
(4) Claims for defects shall become time-barred one year after delivery of the purchased item, provided that they are claims for which limited liability exists under Sections 8 or 9. Claims for reduction and the exercise of a right of withdrawal are excluded if the claim for subsequent performance has become time-barred. In the case of sentence 3, however, the purchaser may refuse payment of the purchase price to the extent that he would be entitled to do so due to the withdrawal or reduction; in the event of exclusion of withdrawal and a subsequent refusal to pay, we shall be entitled to withdraw from the contract. A reversal of the burden of proof is not intended.
(5) Representations and guarantees are only valid if we grant them expressly and in writing.

§ 9 Withdrawal by the customer and other liability on our part

(1) The purchaser’s statutory right of withdrawal shall – except in the cases set out in Section 8 – neither be excluded nor limited. Likewise, our statutory or contractual rights and claims shall neither be excluded nor limited.
(2) We shall only be liable without limitation for intent and gross negligence (including that of our legal representatives and vicarious agents) and for injury to life, limb, or health. We shall also be liable without limitation for guarantees and warranties provided that a defect covered by them triggers our liability. There is also no limitation for liability arising from dangerous circumstances (in particular under the Product Liability Act). Any liability under the principles of recourse by the entrepreneur pursuant to Sections 478 et seq. of the German Civil Code (BGB) remains unaffected.
(3) In the event of any other culpable breach of essential contractual obligations (cardinal obligations), our remaining liability shall be limited to the foreseeable damage typical for the contract.
(4) Otherwise, liability – regardless of the legal basis (in particular claims arising from the breach of primary and secondary contractual obligations, tortious acts, and other tortious liability) – is excluded.
(5) The same (exclusions, limitations, and exceptions thereto) applies to claims arising from negligence upon conclusion of the contract. (6) In the event of reimbursement of expenses (with the exception of those pursuant to Sections 439 II, 635 II BGB), Section 9 applies accordingly.
(7) An exclusion or limitation of our liability also applies to our legal representatives and vicarious agents.
(8) A reversal of the burden of proof is not intended. Cardinal obligations are essential contractual obligations, i.e., obligations that characterize the contract and upon which the contractual partner may rely; they are thus the essential rights and obligations that create the prerequisites for contract fulfillment and are indispensable for achieving the purpose of the contract.

§ 10 Place of performance, place of jurisdiction, applicable law, contract language and allocation of burden of proof

(1) The place of performance is the place of dispatch (factory or warehouse location).
(2) The place of jurisdiction is our registered office, provided that the customer is also a merchant, a legal entity under public law, or a special fund under public law. The same applies if the customer has no general place of jurisdiction in Germany, if he relocates his registered office abroad after conclusion of the contract, or if his registered office is unknown at the time the action is filed. We are entitled to sue the customer at other permissible places of jurisdiction.
(3) With regard to all claims and rights arising from this contract, the law of the Federal Republic of Germany (BGB, HGB) shall apply. The applicability of the UN Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded. The contract language is German.
(4) None of the clauses agreed in these terms and conditions shall alter the statutory or case-law allocation of the burden of proof.

§ 11 Other provisions

(1) Amendments to the contract can only become effective with our consent.
(2) Should individual provisions of these terms and conditions be invalid or void in whole or in part, the remaining provisions shall remain unaffected. The contracting parties undertake to agree to a provision that largely achieves the economic purpose pursued by the invalid or void provision.
(3) We process all customer data exclusively for the purposes of business transactions and in accordance with the provisions of the applicable data protection regulations. Upon request, the customer also has the right to information about his or her personal data collected, processed, and used by us.
(4) All terminology and regulations are to be understood as gender-neutral and otherwise non-discriminatory within the meaning of the General
Equal Treatment Act (AGG).