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TERMS AND CONDITIONS OF SALE

STANDARD TERMS AND CONDITIONS OF
WAVELOCK ADVANCED TECHNOLOGY GMBH.
FOR THE SALE OF GOODS (“STC”)

1. PREAMBLE

1.1
These standard terms and conditions for the sale of products and goods ("Goods") by Wavelock Advanced Technology GmbH. ("Seller") shall exclusively apply to any agreement on the sales of Goods ("Agreement") to any party interested to acquire Goods (each a "Buyer"), save as varied by express agreement accepted in writing by the Seller and the Buyer (each a "Party" and together the "Parties").
1.2
The offer, confirmation of order, order acceptance of sale of any Goods covered herein is conditioned upon the terms contained in these STC. Any terms and conditions of the Buyer shall not apply and are excluded. They shall not become part of the Agreement between the Parties even if the Seller did not expressly object to the use of respective terms and conditions of the Buyer.
1.3
These conditions shall govern any future individual contract for the sale of Goods between the Seller and the Buyer to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
1.4
Any typographical, clerical or other error or omission in any sales documentation, quotation, price list, acceptance of offer, invoice or other document of information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

2. ORDERS AND SPECIFICATIONS

2.1
No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller or the Seller's representative within twenty-one (21) days after its submission.
2.2
The quantity, quality and description of and any specification for the Goods (subject to Section 8 below) shall be those set out in Seller's quotation (if accepted by the Buyer) or Buyer's order (if accepted by the Seller). Any such specification, sales documentation, quotation etc. shall be deemed confidential information within the meaning of Section 11 below and must not be made available to third parties.
2.3
The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the contract in accordance with its terms.
2.4
If Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual rights of any other person which results from the Seller's use of the Buyer's specification.
2.5
The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory requirements or, where the Goods are to be supplied to the Seller's specification, which do not materially affect their quality or performance.

3. PRICE

3.1
The price of the Goods shall be the Seller's quoted price or, where no price has been quoted, the price listed in the Seller's published price list current at the date of acceptance of the order.
3.2
The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect an increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of materials or labour or other costs of manufacture) or any change in delivery dates.
3.3
Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller on an EXW (ex works) (Incoterms 2010) basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller's premises, the Buyer shall be liable to pay the Seller's charges for transport, packaging and insurance.
3.4
The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.

4. TERMS OF PAYMENT

4.1
The Buyer shall pay the price of the Goods within thirty (30) days of the date of the Seller's invoice. unless otherwise agreed in writing.
4.2
Payment shall be effected by wire transfer to the bank account of Seller (or an affiliated company of Seller) indicated in the Seller’s order quotation or confirmation/ the Seller’s invoice only; no cheque or bill of exchange will be considered as fulfilment of the payment obligation.
4.3
Payment is deemed to be made on the date when it is credited to the bank account of Seller in the amount received.
4.4
If the Buyer fails to make any payment by the due date, i.e. (i) immediately after order acceptance, or (ii) by the due date agreed by both Parties in the order documentation, or (iii) indicated on Seller’s invoice or otherwise, whichever date is later, then, without prejudice to any other right or remedy available to Seller, Seller shall at his discretion be entitled to:
  • - rescind (zurücktreten) the contract or suspend any further deliveries to Buyer; or
  • - charge the Buyer interest on the amount unpaid, at the rate of 9 percentage points above the base interest rate of the Deutsche Bundesbank from then being valid per annum, until payment in full is made. The Buyer shall be entitled to prove that the delay of payment caused no or a smaller damage only. The right to claim further damage remains unaffected.

5. DELIVERY

5.1
Unless otherwise agreed in the order documentation, "Delivery" of the Goods shall be deemed to be the time when the Seller notifies the Buyer that the Goods are available for collection ("ex works", Incoterms 2010).
5.2
Times set for supplies can only be observed if all documents to be supplied by the Buyer, necessary permits and releases, especially concerning plans, are received in time and if agreed terms of payment and other obligations of the Buyer are fulfilled. Unless these conditions are fulfilled in time, times set shall be extended appropriately; this shall not apply where the Seller is responsible for the delay.
5.3
If non-observance of the times set is attributable to force majeure (Clause 9.6 below), such time shall be extended accordingly.
5.4
If the Seller is responsible for the delay of supplies and the Buyer suffered a proven loss therefrom, the Buyer may claim damages subject to the conditions of section 9 or claim cancellation of the contract subject to applicable statutory regulations.
5.5
At the Seller's request the Buyer shall declare within a reasonable period of time whether the Buyer rescinds the contract due to the delayed supplies or insists on the supplies to be carried out.
5.6
If a dispatch or shipment is delayed at the Buyer's request by more than one month after notice of the readiness for dispatch was given by the Seller, the Buyer may be charged, for every month commenced, storage costs of 0.5 per cent of the price of the items of the supplies, but in no event more than a total of five per cent. The Parties to the Agreement may prove that higher or, as the case may be, lower storage costs have been incurred.

6. TRANSFER OF RISKS

Risk of damage to or loss of the Goods shall pass to the Buyer as follows:

  • - in the case of Goods to be delivered otherwise than at the Seller's premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods;
  • - in the case of Goods to be delivered at the Seller's premises ("ex works", Incoterms 2010) at that time when the Goods are made available for collection and the Seller notifies the Buyer that the Goods are available for collection.

7. RETENTION OF TITLE

7.1
Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these STC, the property in the Goods shall not pass to the Buyer until the Seller has received payment in full of the price of the Goods and all other Goods agreed to be sold by the Seller to the Buyer for which payment is then due.
7.2
If the Buyer fails to comply with terms and conditions of the contract - in particular in the case of payment arrears (Zahlungsverzug) - the Seller shall be entitled to request payment within an appropriate period of time and - once such period has lapsed without full payment to retake and sell or otherwise deal with (verwerten), or dispose (in particular attach (pfänden)), of all or any part of the Goods in which title remains vested in the Seller ("Reserved Goods").

To the extent the Seller retakes, or sells, deals with, or disposes of Reserved Goods, the Seller shall be deemed to have rescinded the contract. The Buyer shall bear the transportation costs of retaken, sold, dealt-with, or disposed-of Reserved Goods. The proceeds from any sale, dealing with, or disposal of the Reserved Goods shall reduce the amount owed by the Buyer to the Seller, provided that the Seller shall be entitled to reduce the proceeds by reasonable costs of the sale, deal, or disposal.
7.3
Until such time as the property in the Reserved Goods passes to the Buyer, the Buyer shall hold the Reserved Goods as the Seller's fiduciary agent, and shall keep the Reserved Goods properly stored, protected and insured.
7.4
Until such time as the property in the Reserved Goods passes to the Buyer, the Buyer shall be entitled to resell or use the Reserved Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Reserved Goods including insurance proceeds, and shall keep all such proceeds separate form any moneys or properties of the Buyer and third parties.
7.5
If third parties seize or otherwise enforce rights into (vollstrecken in) the Reserved Goods, the Buyer shall immediately notify the Seller in order to enable the Seller to seek a court injunction in accordance with § 771 of the German Code of Civil Procedure (Zivilprozessordnung – ZPO). If the Buyer fails to do so in due time he will be held liable for any damages caused.
7.6
The Seller shall on demand of the Buyer release any part of the collateral if the value of the collateral held in favour of the Seller exceeds the value of the claims being secured. The Seller shall have sole discretion in his decision to release those parts of the collateral suitable for him.

8. CLAIMS BASED ON DEFECTS

8.1
Defects as to quality All items delivered by the Seller shall be free from defects as to quality. Defects as to quality (Sachmängel; hereinafter "Defects") are given if the Goods do not feature the contractually agreed characteristics (Beschaffenheitsangaben) or if the Goods are not suitable for the contractually agreed use. Unless specifically agreed otherwise, all characteristics of the delivered items are conclusively agreed in the respective Seller's quotation (if accepted by the Buyer) or the Buyer's order (if accepted by the Seller), in accordance with Section 2.2 above. Seller shall not be liable for Defects relating to qualities and characteristics not specifically agreed. Unless a specific intended use of the delivered items is specifically agreed, it is the sole responsibility of the Buyer to examine the suitability of the delivered items for the Buyer’s intended use. An insignificant deviation from the agreed characteristics, quality, negligible impairment of usability, natural wear and tear shall not be considered a Defect.

The Buyer shall examine the Goods and notify in writing any Defects as required by German Law (§§ 377 of the German Commercial Code) and in doing so check every delivery in any respect.

The Seller's responsibility for Defects shall be restricted as follows:
  • - the Seller shall not be liable in respect of any Defects arising from any design or specification supplied by the Buyer;
  • - the Seller's liability does not extend to parts, materials or equipment manufactured by or on behalf of the Buyer.
The Seller's liability does not cover Defects in or damage to the Goods which are due to improper installation or maintenance, misuse, neglect or any cause other than ordinary commercial application. Further, the Seller’s liability does not cover Defects in or damage to the Goods arising after transfer of risk as a result of faulty or negligent handling on the Buyer’s side, excessive strain, unsuitable production facilities or operating resources, or particular external influences which were not specifically agreed.
8.2
Claims based on Defects Where any valid claim in respect of any Goods, which is based on any Defects of the Goods, is notified by the Buyer to the Seller in accordance with the conditions of this Clause 9, the Seller shall first be given the opportunity to supplement its performance (Nacherfüllung) within a reasonable period of time. For supplementing its performance, the Seller at the Seller's sole discretion shall be entitled to either replace the Goods free of charge (supplementary delivery) or repair the Goods. If the Seller is neither ready nor able to either repair or replace the Goods within a reasonable period of time the Buyer shall be entitled at the Buyer's sole discretion to claim for a reduction of price (Minderung) or the cancellation of the contract (Rücktritt).

Next to the remedies set out above, the Buyer shall be entitled to ask for compensation in lieu of performance, or reimbursement of its expenditure in accordance with the provisions of Clause 9 below ("Limitation of Liability") in the event that fault can be attributed to the Seller.

If the supplementary performance of the Seller is carried out by supplementary delivery, the Buyer shall return the Goods first delivered within 30 days. Otherwise the Seller is entitled to invoice the purchase price for the supplement Goods.

Any claims based on Defects are subject to a limitation period of twelve months, which runs from the date of delivery.

9. LIMITATION OF LIABILITY

9.1
The Seller shall only be liable for damages claims, irrespective of their legal nature, including, in particular, breach of contractual duty or tort, in the following cases:
  • a) wilful misconduct;
  • b) death or personal injury;
  • c) to the extent the Seller (i) has guaranteed a certain quality of the Goods, and/or (ii) has accepted the risk of the non-availability of certain Goods, and/or (ii) is subject to any product liability claims according to the German Product Liability Act (Produkthaftungsgesetz);
  • d) if in other cases legal provisions provide for liability regardless of negligence or fault;
  • e) if, in case of a breach of a miscellaneous contractual duty within the meaning of Sec. 241 Para. 2 of the German Civil Code (sonstige Pflicht im Sinne des § 241 Abs. 2 des Bürgerlichen Gesetzbuchs – BGB), the Buyer can no longer be expected to accept the Seller’s performance of his contractual obligation;
  • f) gross negligence; and/or
  • g) to the extent liability has not already occurred in accordance with Section 9.1 a) to f), in case of a breach of a Material Duty (wesentliche Vertragsverletzung) by the Buyer.
Apart from that, the Seller’s liability is excluded. A "Material Duty" within the meaning of the present Agreement shall be (i) any contractual duty protecting an essential contractual position of the Buyer, the granting of which position is an essential aim and purpose of the Agreement, and/or (ii) any contractual duty the fulfilment of which is a basic requirement enabling the proper performance of the Agreement in the first place and in the fulfilment of which the Buyer may usually trust.
9.2
The Seller may only be held liable for the non-availability of goods (Section 9.1 c)), if it has expressly "accepted the risk for the non-availability" by written agreement.
9.3
In the case of Section 9.1 d) to g), the Seller shall only be liable for the typical and foreseeable damage.
9.4
The exclusions or limitations of liability, pursuant to Sections 9.1 to 9.3, shall also apply to the same degree in relation to any acts of the Seller’s legal representatives, executives and non-executive employees and other vicarious agents as well as subcontractors. The Seller does not assume any liability for employees or other auxiliary persons who are engaged in the performance of his contractual duties by the Buyer and the Buyer shall indemnify the Seller against all expenses and claims by any third party for damages of such persons. This shall not apply in case these persons are deemed to be auxiliary persons of the Seller.
9.5
The aforementioned provisions shall not be interpreted as a shift of the burden of proof.
9.6
The Seller shall not be liable for failure to fulfil any of its obligations in case the failure is caused by circumstances beyond its control (force majeure). During force majeure the Seller’s obligation to fulfil its obligations shall be suspended. In the event that the performance of the Seller’s contractual obligations is made impossible by force majeure for a period longer than thirty (30) days, each Party shall be entitled to withdraw from the Agreement without judicial intervention and without any obligation whatsoever to compensate the damages of the Buyer.

10. END CUSTOMER DATA

The Buyer shall comply with any applicable data protection laws and duly observe the data protection rights and claims of its customers. In particular, there is expressly no obligation and also no permission of the Buyer to share, neither directly or indirectly, any customer data with the Seller.

11. CONFIDENTIALITY

11.1
"Confidential Information" embodies all information declared as confidential under the Parties’ Agreement, under these STC, or by a Party, as well as generally all hard copy, verbal or electronic information and data, such as technical or business data, documents or knowledge as well as even prototypes, exchanged by the Parties in connection with their Agreement.
11.2
For the term of the Parties’ Agreement and a period of ten (10) years thereafter each Party commits to use any confidential information only for the purpose of fulfilling the Parties’ Agreement or to exercise any rights granted herein. It will not be made accessible to third parties or rather it will only be made available to those of its employees or employees of its affiliated companies or anyone acting on behalf of the Party and/or its affiliated consultants who need it as related to the Parties’ Agreement and are required to adhere to a confidentiality agreement corresponding to this Section 11, as far as they are not governed by an employment or consultancy agreement with a general confidentiality agreement. Prior to a Party providing confidential information to an affiliated company or consultant company, it has to ensure that an applicable agreement with the affiliated company or consultant company exists, which obliges that company to treat confidential information in a manner corresponding to this Section 11.

It is agreed by the Parties that any violation of the stated agreement by a consultant or employee of either Party or their affiliates is equal to an infringement by that Party.

This confidentiality obligation does not apply to confidential information that
  • • was at the time of its disclosure to the receiving Party published or otherwise generally available to the public; or
  • • has after disclosure to the receiving Party been published or become generally available to the public other than by breach of the Parties’ Agreement or the present STC by the receiving Party; or
  • • was already known to the receiving Party at the time of its disclosure by the disclosing Party and was not otherwise acquired by the receiving Party from the disclosing Party under any obligations of confidence; or
  • • has at any time after the date of the conclusion of the Parties’ Agreement been acquired by the receiving Party from a third party having the right to disclose the same to the receiving Party without breach of obligation owed by that third party to the disclosing Party; or
  • • was developed independently of the work performed under the Agreement by the receiving Party.
11.3
Three (3) months after the end of the term of the Parties’ Agreement the entrusted Party may demand from the receiving Party in writing the immediate destruction or return of any confidential information in hard copy and/or electronic form and all copies thereof, as well as possibly prototypes, which have been exchanged, not subject to compliance with legal obligations.
11.4
Media press releases by the Parties will only be allowed with prior written consent of the other Party.

12. COUNTERFEIT PRODUCTS

The Buyer shall recognize and respect all intellectual property rights of the Seller and must not source, distribute, market or sell any products that are counterfeits of, or otherwise infringe the intellectual property rights of the Seller in and to, the Goods.

13. APPLICABLE LAW AND VENUE

13.1
These Terms and Conditions shall be governed by the laws of the Federal Republic of Germany (excluding the Convention on Contracts for the International Sale of Goods - CISG).
13.2
Exclusive place of jurisdiction for all disputes arising out of or in connection with the present Terms and Conditions and/or an Agreement governed by the present Terms and Conditions shall be district court of Düsseldorf (Landgericht Düsseldorf), Germany.
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