Terms and Conditions

CME Control Motion Electronics GmbH – As of: 01.10.2016

§ 1 Scope of Application

(1) These terms and conditions apply unless otherwise agreed in writing; conflicting or deviating terms of the customer are not binding upon us, even if we have not expressly objected to them or have carried out the delivery without reservation. They shall also apply to all future transactions of this kind, even if not expressly agreed upon again.

(2) Our terms and conditions apply exclusively. We do not recognise any conflicting or deviating terms of the client unless we have expressly agreed to their validity in writing. Our terms and conditions shall also apply if we carry out the contract without reservation in the knowledge of conflicting or deviating terms of the client.

(3) Unless otherwise stated in these terms and conditions, the definitions and terms of INCOTERMS 2010 shall apply.

§ 2 Contract Conclusion – Written Form

(1) Our offers are non-binding unless otherwise provided in writing. An order is only deemed accepted when we have confirmed it in writing. Likewise, technical descriptions and other information in offers, brochures and other materials are initially non-binding.

(2) All agreements, declarations and other information require written form for their validity; telephone calls must be confirmed in writing. A fax confirmation is sufficient to maintain the written form requirement.

(3) Our employees are not authorised to make oral agreements that go beyond the content of the written contract.

(4) The subject of the contract is the project described by the order and our order confirmation. Details arise from the specification sheet, provided this has been bindingly and formally agreed with us in writing. In accordance with the content and nature of research, development and service contracts, service contract law shall apply to our legal relationship with the client, unless otherwise expressly stipulated below or in individual contracts.

§ 3 Scope of Deliveries and Services

(1) Documents, drawings, weight specifications, samples, etc. attached to our offer are only approximate unless the offer states otherwise.

(2) Changes to the design, layout, material selection and manufacturing are expressly reserved even after sending the order confirmation, provided that the price and/or essential functional data or delivery time are not changed and this is reasonable for the customer.

(3) The scope of our performance obligation is determined by our written order confirmation, possibly in conjunction with the specification sheet if this has been accepted by us in writing.

§ 4 Delivery Periods

(1) The delivery time stated in our order confirmation is non-binding unless otherwise agreed in writing. Correct and timely self-delivery is expressly reserved. The delivery period begins with the date of dispatch of our order confirmation, but not before all technical details have been fully clarified.

(2) If dispatch is delayed at the customer's request or for other reasons not attributable to us, the customer shall bear the additional costs incurred and the risk of accidental loss or deterioration of the goods from notification of readiness for dispatch.

(3) In the case of storage at our works (or at our authorised representatives), we are entitled to charge at least 0.5% of the delivery price for each month or part thereof of storage. Further claims are reserved.

(4) Partial deliveries and early deliveries are generally reserved.

(5) In the event of a delay in delivery attributable to us, the customer is entitled to claim damages of up to 0.5% of the delivery value per completed week of delay, but not exceeding 5% in total. If the customer sets us a deadline that is reasonable under the circumstances in the event of a delivery delay and this expires without success, the customer is entitled to withdraw from the contract. The grace period for development services must be at least 15 working days. After it has expired without result, the customer is entitled to withdraw from the contract in writing. Damages in lieu of performance are limited to 50% of the damage incurred; only the typical and foreseeable contractual damage shall be taken into account. The above provisions apply accordingly if we render performance only in part. A prerequisite for claiming damages in lieu of performance is that the breach of duty attributable to us is not insignificant.

(6) The above provision does not apply if the contract is a fixed-date transaction within the meaning of § 376 HGB (German Commercial Code). The same applies if the customer's interest has ceased as a result of the delay.

(7) Our compliance with the delivery deadline requires the timely and proper fulfilment of the customer's contractual obligations, in particular payment obligations.

(8) If partial services are reasonable for the client and ultimately have no influence on the intended scope of services and the intended service period, they may be performed and invoiced.

(9) The schedule agreed in the order confirmation applies to the execution of development work. In accordance with the development character of the projects, the dates and deadlines agreed in the schedule are only guidelines unless the contrary is expressly agreed in writing. In any case, performance periods and dates are stated subject to the client providing cooperation in accordance with the contract. The client is required to provide the following cooperation in every case:

• (a) The client shall, as shall we, designate a contact person equipped with all necessary competencies no later than the start of the project.
• (b) The client shall ensure that we have access to their development areas insofar as this is necessary in terms of subject matter and timing for carrying out the project.
• (c) The client shall provide us with a suitable email account for the exchange of data and information for the duration of the project.

Compliance with our performance obligation requires the timely and proper fulfilment of the client's obligations. If the client is in default of payment for a previous service, we are entitled to withhold our services. The client cannot derive any rights from such justified withholding.

(10) If we ourselves are not supplied correctly or on time, despite having placed sufficient orders with reliable suppliers, we shall be released from our performance obligation and may withdraw from the contract immediately.

(11) If an agreed deadline cannot be met due to temporary impediments to performance not attributable to us (e.g. inadequate self-supply, force majeure, energy and raw material shortages, industrial action, transport disruptions, illness) at our premises or those of our suppliers, it shall be extended appropriately. We will inform the client of such a case without delay. If the obstructing circumstances persist one month after the agreed deadline has expired, either party may withdraw from the contract in writing. Further claims due to an exceeding of the performance period for which we are not responsible are excluded.

(12) Claims by the client due to exclusion of the performance obligation and due to an impediment to performance at the time of contract conclusion are limited to 50% of the damage or expense incurred; only the typical foreseeable contractual damage or expense shall be taken into account. The same applies accordingly if we render performance only in part.

(13) Statutory liability applies for damages arising from injury to life, body or health based on a breach of duty attributable to us, and for other damages if the breach of duty is based on intent or gross negligence. Our liability is limited to the typical foreseeable contractual damage if the breach of duty constitutes a violation of a material contractual obligation.

§ 5 Transfer of Risk, Dispatch, Packaging

(1) The risk passes to the customer ex our works or ex our distribution warehouse (EXW according to INCOTERMS 2010), including in the case of partial deliveries.

(2) Dispatch is at the customer's expense and risk; if no dispatch instructions are given by the customer, we shall choose the cheapest means and route of transport.

(3) Packaging costs are charged at cost unless otherwise agreed.

(4) We reserve the right to take out transport insurance. In the event of transport damage, settlement shall be made in accordance with our insurance conditions upon presentation of the following documents: a) report by the transport institution, b) original consignment note, c) assignment of claims arising from the damage.

(5) The customer is obliged to notify us in writing of any transport damage within 8 days of receipt of the shipment. Damaged parts are to be returned free to our works or distribution warehouse.

§ 6 Prices, Payment Terms, Securities

(1) Our prices are in Euro plus separately stated VAT at the applicable statutory rate, and in the case of delivery ex works of CME Control Motion Electronics GmbH, excluding packaging, transport and insurance.

(2) Our prices are based on the cost factors applicable at the time of submission of the offer (order confirmation). If these change between the time of contract conclusion and delivery, we reserve the right to adjust the price in reasonable proportion to the increased costs.

(3) All payments by the customer are to be made without any deduction by bank transfer to our bank account at the specified dates. The customer is only entitled to set-off rights with undisputed or legally established claims; in these cases the customer is also entitled to withhold payment. The customer is further entitled to withhold payment if the reason for the right of retention lies in a defect in the delivery for which we are responsible; in these cases the right of retention may only be exercised in proportion to the defect.

(4) If changes occur in the customer's financial circumstances after the date of our order confirmation that are likely to jeopardise fulfilment of payment obligations, we are entitled to withhold delivery of the goods or demand security. If the customer does not comply with our demand for security within a period of 10 working days, we are entitled to withdraw from the contract and may, in addition to remuneration for all services rendered to date, demand compensation for standby costs amounting to the average monthly remuneration calculated over the last three months.

(5) Our representatives and sales staff are not authorised to accept payments or means of payment unless they have collection authority.

(7) Payment methods other than bank transfers require a separate written agreement. Any costs arising on both sides shall be borne by the client.

(8) If the customer is in default of payment, we are entitled to charge default interest at 5% above the respective base rate.

§ 7 Warranty

(1) In the event of a defect, we shall be liable by rectifying errors in design, manufacture, colour, quality or other execution at our discretion free of charge within a reasonable period, either by free defect rectification or by delivery of a defect-free item.

(2) For defects that have occurred and been reported in time in goods and parts delivered according to test and release samples, we shall only be liable if the delivered parts deviate from those presented to and approved by the customer.

(3) Our warranty liability requires that the customer has reported recognisable defects in writing in accordance with § 377 HGB within 10 days of receipt of the goods. Defects occurring later must be reported in writing within the same period from discovery.

(4) Our warranty liability further requires that the goods have been properly installed, commissioned and used in strict compliance with our operating instructions.

(5) If subsequent performance fails, the client is entitled under statutory conditions to: (a) demand a reduction in remuneration (abatement) if our service was the subject of the contract, (b) withdraw from the contract or demand abatement if exceptionally our work performance was the subject of the contract.

(6) Unless otherwise stated below, further claims by the client – regardless of legal grounds – are excluded. We are therefore not liable for damages not arising from the delivered item itself; in particular, we are not liable for lost profits or other financial losses of the client.

(7) The above limitation of liability does not apply insofar as the cause of damage is based on intent or gross negligence. It also does not apply if the client asserts claims arising from injury to life, body or health.

(8) If we negligently breach a material contractual obligation, our liability is limited to the typical foreseeable contractual damage.

(9) The warranty period is one year from delivery. This does not apply insofar as the law mandates longer periods.

(10) Paragraphs 6 to 9 apply accordingly to a breach of duty by our legal representative or vicarious agent.

§ 8 Customer-Supplied Materials

(1) All materials supplied by the customer are to be delivered free of charge. Our incoming goods inspection checks quantity and transport damage. No qualitative inspection of components takes place. Components are handled like our own material unless detailed handling documentation is provided by the customer.

(2) Damages caused directly or indirectly by customer-supplied materials are not our responsibility; the provision of § 7 para. (6) remains unaffected.

(3) Should the customer provide us with detailed technical documentation regarding the supplied materials, we will take these into account in our materials management.

§ 9 Other Claims

(1) The customer is not entitled to further damage claims beyond those regulated in § 7. This applies regardless of the legal nature of the claim asserted. Claims under the Product Liability Act remain unaffected.

(2) Any claims under para. (1) shall become time-barred within the period of § 7 para. (9).

§ 10 Retention of Title

(1) We retain ownership of the goods until receipt of all payments from this delivery contract, including all other contracts concluded between the customer and us up to the time of conclusion of this contract. The customer may resell the reserved goods in the ordinary course of business. However, the customer hereby assigns to us all claims arising from the resale against the buyer or third parties.

(2) The customer is not entitled to pledge the reserved goods or assign them as security to third parties.

(3) In the event of conduct in breach of contract by the customer, in particular default in payment, we are entitled to take back the goods. The taking back and seizure of goods by us does not constitute a declaration of withdrawal from the contract.

(4) In the event of seizures or other interventions by third parties, the customer must notify us immediately.

(5) If the goods are resold together with other goods not belonging to us, the customer's claim against the buyer in the amount of the delivery price agreed between us and the customer shall be deemed assigned upon conclusion of the contract.

(6) If our ownership is extinguished as a result of installation, the customer assigns the resulting compensation claim to us.

(7) Processing and working of the reserved goods by the customer is always carried out on our behalf.

(8) At the customer's request, we are obliged to release securities of our choice insofar as the realisable value of the securities exceeds our claim by more than 10%.

(9) We reserve ownership and copyright of illustrations, drawings, calculations and other documents made available to the client. They may not be made accessible to third parties. The client requires our express written consent before passing them on to third parties.

§ 11 Termination

(1) The client is entitled to terminate an order if the development goal is no longer achievable or only achievable with disproportionate additional effort, or if the client wishes to discontinue the development project for other reasons. In the event of early termination, the client is obliged to reimburse us for all costs demonstrably incurred up to the termination date and directly resulting from this contract, including costs arising from obligations that can no longer be resolved.

(2) Upon termination of the order, we shall hand over the development result achieved up to that point against payment of the remuneration, any standby costs and all other services owed to us.

§ 12 Place of Performance – Jurisdiction – Scope

(1) The rights of the client are not transferable.

(2) The place of performance for all obligations arising from this contract, including a claim for withdrawal, is Dortmund.

(3) The place of jurisdiction is Dortmund. This also applies to actions on bills of exchange and cheques, in particular for claims arising from dunning proceedings.

(3b) These terms of sale, delivery and payment apply only to entrepreneurs within the meaning of § 14 BGB (German Civil Code).

(4) The law of the Federal Republic of Germany shall apply exclusively to these terms and conditions and the entire legal relationship with the client, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

(5) Should individual provisions be invalid or the terms and conditions contain gaps, the validity of the remaining provisions shall not be affected. In place of the invalid provision, the valid provision that corresponds to the meaning and purpose of the invalid provision shall be deemed agreed.