General Terms and Conditions of Purchase of airinotec GmbH

(as per 2016)

I. Conclusion of Contract

1. Our orders are subject to our General Terms and Conditions of Purchase. These are an integral part of all contracts concluded between ourselves and our Suppliers regarding the deliveries or service that they offer. No other conditions shall enter into any contract, even if we do not expressly object to them. Our acceptance of a delivery or service without objection shall not be construed as our acceptance of the Suppliers' conditions of delivery. Even if we make reference to a writing containing Suppliers’ conditions or the conditions of a third party or which makes any reference thereto, this shall not constitute any agreement with any such conditions. Upon receipt of our order, the Supplier shall declare its express acceptance of our General Terms and Conditions of Purchase. In the event that the Supplier fails to declare its acceptance, the execution of our order shall in any case be construed as acceptance of our General Terms and Conditions of Purchase. It shall be deemed agreed that we can accept offers within a period of 30 days.

2. If the Supplier does not accept our order within 5 days after receipt, we shall have the right to revoke the order. If our order is not confirmed within 7 days after receipt, it shall be deemed unconditionally accepted on the basis of our General Terms and Conditions of Purchase. The time at which we receive the declaration of acceptance shall be materially determinative as to whether the order was accepted in due time.

3. These General Terms and Conditions of Purchase shall only apply to contracts concluded with companies.

4. All contracts and amendments or additions thereto must be made in writing. Oral agreements shall only be binding upon us if we have confirmed them in writing.
   Any orders or calls, or their alteration or amendment, can also be executed by means of electronic data transfer or machine readable data carriers.

5. There shall be no remuneration or compensation for visits or for the preparation of offers. These General Terms and Conditions of Purchase shall be valid for all future purchase agreements and business transactions, even if they are not expressly included again.

6. Any weights and measures, amounts, prices, other descriptions and other data as contained in any catalogues, circulars, advertisements or price lists are only approximations and shall not be binding upon us unless and until they are expressly included in a contract. Such data, which were made available to the Supplier before the conclusion of the contracts, remain our sole property and must not be disclosed to any third parties.

7. We shall retain ownership and copyrights in regard to all offers and cost estimates issued by us to the Supplier as well as regards any illustrations, calculations, brochures, catalogues, models, tools, samples, drawings or any other material or immaterial information, documents and resources made available to the Supplier including, but not limited to, those provided electronically; these must not be disclosed or be made available to any third parties (either as such or by disclosure of their contents) or be copied by the Supplier or by any third party or be used for the purposes of the Supplier or any third party. Upon our request, the Supplier must return all these items to us in their entirety and, where applicable, upon our request destroy any copies made thereof if they are no longer needed by it in the ordinary course of business or should negotiations not result in the conclusion of any contract.

II. Prices, Shipping, Packaging

1. The price stated in the order is binding. All agreed prices are fixed prices and net prices, and any additional claims or demands are excluded. Prices include the costs of packaging, shipping and transport to the delivery address or to the place of use indicated by us.  In the event of any express delivery prompted by our request, the Supplier can charge us for the difference between regular shipping costs and express shipping costs. If no prices are stated in our order, the Supplier's then currently valid list prices (minus any customary discounts) shall apply or, as the case may be, the price shall be announced to us in the order confirmation at the latest. If we do not object within 8 working days at the latest, the respective price shall be deemed accepted. All prices must be in Euro currency. This pricing method shall not affect the agreement concerning the place of performance.

2. The Supplier shall bear the entire shipping risk. To the extent that the goods are subject to acceptance, such acceptance shall be of the essence for the transfer of risk. Any risk of impairment, including any accidental loss, shall reside with the Supplier until the goods are delivered to the delivery address or the place of use indicated by us or, as the case may be, until their due acceptance. In exceptional cases where delivery ex works, ex stock or similar delivery has been agreed to, we will only accept those shipping costs that are the most favorable for us. Any costs incurred until the goods are transferred to the shipping agent, including any loading and cartage, shall be borne exclusively by the Supplier.

3. In exceptional cases where we can be legitimately invoiced for packaging, we shall retain the right to return packaging material in good condition to the Supplier free of carriage charges in exchange for a refund of two-thirds of the value stated in the invoice. In exceptional cases where we agreed to bear the cost, any packaging costs and packaging rental costs shall be charged at net cost. If the packaging costs or packaging rental cost amounts charged were obviously excessive, we reserve the right to deduct an appropriate amount from the invoice amount. The Supplier shall package, label and load the goods in a way that is appropriate for the mode of transportation and which accounts for the expected time of transport.

4. We are entitled to terminate a contract at any time with a written declaration and indication of the reason of termination if we can no longer use the goods in our business operations due to circumstances arising after entering into the contract. These circumstances may include, in particular but without limitation, any termination of any contract with any of our customers or final consumers for which we are not responsible or as a result of any changes in the overall technical solutions for any of our customers or final consumers if these changes are made in the course of the technical processing (e.g., due to any modification requests of our customers) after entering the contract. In such case, we shall pay the Supplier for any partial services or supplies provided.

III. Invoicing and Payment

1. Invoices shall be mailed to us in duplicate upon shipment of the goods, but under separate cover. All invoices must bear the order number and order date. Value added tax must be shown separately on the invoice. Invoices containing several orders cannot be processed. Should one or more of the foregoing information item be missing and as a result our processing in the ordinary course of business become delayed, the payments deadlines set forth in Point 2. above, shall be extended for the time period of such delay. The amounts, weights and other suitable properties that have been determined by us shall be materially decisive as regards the basis for payment. Settlement of each invoice shall occur in a means of payment chosen by us. Should we choose to pay with bills of acceptance accepted by us, the note tax and an appropriate discount rate shall be refunded. The settlement of an invoice shall not constitute a waiver of any claims for any defects of the invoiced goods. In the event of faulty or incomplete delivery, we shall have the right to retain an appropriate share of the invoiced amount until the order has been properly fulfilled. Deliveries or services executed by the seller without our order or in deviation from the contract without our consent shall not be paid.

2. Payments shall be made either within 14 days with 3% cash discount or within 30 days net after receipt of all goods and documents and after receipt of the invoice.

3. Within the legally permitted limits, we maintain the right to offset or retain payments.

IV. Delivery Dates, Delay, Force Majeure, Scope of Delivery

1. The agreed dates are binding. The receipt of the goods at the delivery address or place of use indicated by us or, as the case may be, the date at which successful acceptance was possible is of the essence for the due observation of the date or period of delivery or performance. Every shipment must be accompanied by a binding delivery note containing the respective order and item number. Even if not expressly mentioned, the scope of delivery also includes any agreed technical documentation, test reports, certificates and any other technical documentation that is necessary for the commissioning, operation, service or maintenance of the goods.

2. If the Supplier becomes aware that an agreed date cannot be observed for whatever reasons, he shall notify us immediately and inform us in writing regarding the exact reasons for and duration of the delay. We remain entitled to personally visit the Supplier's production site and gain information regarding the progress of work on the machine or plant ordered by us.
   The Supplier shall ensure that such control rights can also be exercised at the premises and facilities of its suppliers and / or subcontractors.

3. The place of delivery or place of performance for the goods or services is exclusively the destination indicated by us.

4. We shall be entitled without limitation to all available statutory rights in the event of any non-observance of agreed delivery or performance dates and in the event of any delayed delivery or performance.
   For every day of delay, we are entitled to claim a contractual penalty in the amount of 0.5% of the invoice amount for the goods (exclusive of VAT) from the Supplier.
   The total contractual penalty is limited to 5 % of the invoice amount (exclusive of VAT). In addition, the Supplier shall be liable to reimburse us for all direct and indirect damage incurred by us as a result of the delay. The contractual penalty will be deducted from any claim for damages pursuant to BGB (German Civil Code) Section 340 (2). We are obligated to declare our reservation of contractual penalties at the latest upon settlement of the invoice that immediately follows the delayed delivery.

5. Force majeure and labor disputes (with the exception of illegal lockouts) will relieve the Supplier from its contractual obligations for the duration of such events and to the extent that they affect its operations. To the extent that can reasonably be expected, the Supplier is obligated to provide the necessary information without delay and to adjust its obligations to the changed circumstances in good faith. We are relieved of any duty to either partially or entirely accept any ordered goods or services and may withdraw from the contract if we can no longer use the goods of services (after due consideration of all economic aspects) due to the delay caused by any force majeure or labor dispute.

6. If any goods are delivered before the agreed date, we reserve the right to return them at the Supplier's expense. If the goods delivered before the agreed date are not returned, they will be stored by us until the agreed delivery date at the exclusive cost and risk of the Supplier.

7. Partial deliveries and early deliveries will only be accepted if this has been expressly agreed to and if this does not constitute any obligation for us to make any partial or early payments. If any partial delivery has been agreed to, the remaining amount must be stated.

8. Volume tolerances are not allowed. We shall only accept the volumes or amounts ordered by us. Any excess or short deliveries are only permissible if this has been agreed with us in advance in writing. We or our authorized representatives shall have the right to attend quality checks of the ordered goods at the Supplier's premises during their production or before their shipment. Any goods that are found to be faulty or defective may not be shipped by the Supplier until all faults and defects have been removed or repaired. This shall not in any way affect the Supplier's duty of timely delivery and performance. To the extent that the agreed standards and rules for goods or services require a test certificate, approval or similar documentation from a responsible authority, the Supplier shall be liable for providing such documentation.

9. All shipping documents and other accompanying documents must contain our contract number

V. Guaranties & Warranties

1. The Supplier shall be liable for ensuring that the goods have no physical or legal defects and that they duly correspond to all the properties guaranteed by the Supplier.

2. Should during the warranty period the goods be found to have any physical or legal defects, we shall be entitled to the full warranty claims stipulated by applicable laws.

3. The Supplier guarantees that
   - all delivered goods duly comply with the accepted and latest rules and standards for technology as well as with the latest official regulations promulgated by the relevant authorities and accident prevention & insurance associations;
   - all delivered goods are its sole and exclusive property and that they are not encumbered with any third party rights (such as, without limitation, any liens or encumbrances, or other creditor rights emanating from any securitization of assets, leasing, conditional sale, etc.);
   - its delivery and performance shall not constitute any violation of any law, statute, decree or public regulation, or any similar wrongdoing;
   - no third party rights have been infringed upon in any country of the European Union or in any other country in which the products are produced or in which they have been contracted to be produced.

4. The Supplier is obligated to indemnify and hold us harmless in regard to any third party claims relating to any violations set forth in Point 3. above, and to reimburse us for any expenses that might arise in relation to any such claims or demands.

5. Immediately upon demand, the Supplier shall immediately and at its own expense compensate us for any claims related to performance or services during the warranty period, including without limitation the non-inclusion of any promised components, at our exclusive discretion in the form of repair or exchange of such defective components or, as the case may be, in the form of new delivery.
   The Supplier shall bear all expenses emanating from the guaranty obligations. In particular, but without limitation, the Supplier shall bear all expenses related to the determination and removal of any defects, including to the extent they are invoiced to us, such as (without limitation) any inspection costs, any costs of installation or removal, labor costs or the costs of materials, as well as any transportation or other costs in relation to the delivery or return of any defective items. To the extent that expenses thereby increase, this shall also apply to instances when the delivery item was delivered to a place other than the place of performance. 
   Upon the second unsuccessful expiration of any deadline stated by us in regard to the opportunity to cure or new delivery of conforming goods, we shall be entitled to exercise the statutory rights of rescission and reduction. We reserve the right to claim damages in each instance. 

6. Unless expressly agreed otherwise, all warranty rights are subject to the general statutory statutes of limitation periods. The limitation period begins with the transfer of the delivered goods to us or to our authorized representative at the place of receipt or place of use indicated by us. For work services or the delivery of any equipment, machines or plants, the warranty period shall begin on the day of acceptance stated in the written declaration of acceptance by our purchasing department.
   The warranty period for spare parts is 2 years from the date of commissioning.

7. For supplied parts that cannot remain in use during any inspection and/or repair period, the ongoing warranty period shall be extended by the amount of time for which respective operations have been interrupted. The Supplier is obligated to make replacement parts available to us for the products delivered to us for a time period of at least [2] years after delivery. Should the Supplier intend to terminate the manufacturing of replacement parts for the products supplied to us, the Supplier shall inform us immediately upon deciding to terminate the manufacturing of replacement parts. Subject to sentence 1, above, such decision must be made at least [6] months before production is terminated.

8. To the extent that this is appropriate for the ordinary course of business, we will inspect the goods within 5 working days after delivery. Any defects discovered in the course of such ordinary inspections shall be reported to the Supplier within one week after delivery of the goods. In the case of any hidden defects, the Supplier shall be notified within one week after such defects have been discovered.

9. We do not waive any claims related to any guaranty or warranty by means of acceptance or approval of any samples or test items provided.

VI. Product Liability, Indemnity, Liability Insurance Coverage

1. If (and if so to such extent that) the Supplier is responsible for any loss or damage caused by the product, the Supplier shall be obligated to indemnify us on first demand against damage claims of any third parties as far as the cause was within the Supplier's sphere of control and organization and the Supplier is liable to third parties.

2. Moreover, in this context the Supplier is obligated to reimburse us for any expenditures arising for us in accordance with Sections 683 and 670 of the German Civil Code (BGB), which arise from or in connection with any product recall action conducted by us. As far as is possible and reasonably tenable to do so, we shall notify the Supplier regarding the content and extent of the recall action to be taken and shall give the Supplier an opportunity to comment.

3. The Supplier agrees to maintain a product liability insurance policy with a lump sum insured amount of no less than € 2.5 million per each event of personal injury or material damage; this provision shall not be construed so as to restrict any further damage compensation claims on our part.

VII. Applicable Law, Contract Language, Place of Performance and Place of Jurisdiction

1. The contract is governed exclusively by the laws of the Federal Republic of Germany to the exclusion of international private law and The United Nations Convention on the International Sale of Goods (UN-CISG).

2. Unless otherwise agreed, the contractual language shall be German.

3. Unless expressly otherwise agreed, the place of performance for the delivery obligation is the delivery address or place of use indicated by us.

4. For merchants and contractual partners who have no domestic legal domicile in Germany or who move their domicile or usual place of residence to a place outside Germany after execution of the contract, it is agreed that Bayreuth shall be the place of venue for any and all legal disputes arising out of or in connection with the contractual relationship, including any actions based on a bill of exchange or a cheque. Moreover, we retain the right to take legal action against the Supplier at its general legal domicile.

VIII. Final Provisions

Should individual provisions of these General Terms and Conditions of Purchase or other contractual terms be or become either partially or entirely invalid or unenforceable, the remaining provisions shall remain fully valid and enforceable. The Parties agree to replace such invalid or unenforceable provision with a valid, enforceable provision that comes closest to the parties’ original commercial intent when drafting the invalid provision.