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General Conditions

of SOREL GmbH Mikroelektronik

- March 2008 -

I. General

  1. The scope of deliveries and/or services (hereinafter referred to as ”Supplies“) shall be determined by the written declarations of both parties. The inclusion of general purchasing conditions or other general conditions of the Purchaser is explicitly objected herewith. This also holds if the Purchaser refers to own business conditions, even if they contain exclusivity and/or protective clauses to exclude the Standard Terms /Conditions of other parties and the Supplier does not explicitly object them, regardless of the chronological order by which the competing conditions of the contract partners have been referred to, unless they have been approved in writing.
  2. The Supplier herewith reserves any industrial property rights and/or copyrights pertaining to its cost estimates, drawings and other documents (hereinafter referred to as “Documents”). The Documents shall not be made accessible to third parties without the Supplier’s prior consent and shall, upon request, be returned without undue delay to the Supplier if the contract is not awarded to the Supplier. Sentences 1 and 2 shall apply mutatis mutandis to documents of the Purchaser; these may, however, be made accessible to third parties to whom the Supplier may rightfully transfer Supplies.
  3. The Purchaser shall have the non-exclusive right to use standard and customer-specific software, provided that it remains unchanged, is used within the agreed performance parameters, and on the agreed equipment. Property rights over the software remain with the Supplier. This holds particularly for the source code.
  4. Partial Supplies shall be allowed, unless they are unreasonable to accept for the Purchaser.

II. Prices and Terms of Payment

  1. Prices shall be ex works and exclude packaging; value added tax shall be added at the then applicable rate.
  2. If the Supplier is also responsible for assembly or erection and unless otherwise agreed, the Purchaser shall pay the agreed remuneration and any incidental costs required, e.g. travel costs, costs for the transport of tools and equipment, and personal luggage as well as allowances.
  3. Payments shall be made free Supplier’s paying office.
  4. The Purchaser may set off only those claims that are undisputed or against which no legal recourse is possible.

III. Retention of Title

  1. Items pertaining to the Supplies (“Retained Goods”) shall remain the property of the Supplier until each and every claim the Supplier has against the Purchaser on account of the business connection has been fulfilled. If the combined value of the security interests of the Supplier exceeds the value of all secured claims by more than 20%, the Supplier shall release a corresponding part of the security interest if so requested by the Purchaser.
  2. For the duration of the retention of title, the Purchaser may not pledge the Retained Goods or use them as security, and resale shall be possible only for resellers in the ordinary course of their business and only on condition that the reseller receives payment from its purchaser or makes the transfer of property to the purchaser dependent upon the customer fulfilling its obligation to effect payment.
  3. However, he now cedes all claims accruing from the resale to the Supplier. After their assignment, the Purchaser is authorised to collect these claims in trust. The authority of the Purchaser to collect this claim by himself remains unaffected by this; however he is obliged not to collect the claim as long as the Purchaser duly fulfils his obligation to pay.
  4. As far as the Purchaser is authorized to a collection in trust of the claim within the scope of the regular course of business or remains it with approval, the collection shall take place to a bank account separate from the other business accounts, which is kept in trust for the Supplier. The Purchaser shall take all required and reasonable measures so that the payment of the third party does not take place on a different account. The Purchaser is obliged to transfer received amounts from the ceded claims to the Supplier. On request, the Purchaser shall prove the establishment of an account in trust for the borrowed capital being collected by him.
  5. The authority of the Purchaser to the collection expires if the Supplier cancels them in writing, the Purchaser does not fulfil his payment obligations arising from the received revenues or if an application for opening insolvency proceedings over the assets of the Purchaser is filed or if he ceases his payments. In these cases the Supplier is authorised to collect the assigned book account by himself. The Purchaser shall release all information that is required for the collection and to deliver the corresponding documents. In this case the Purchaser is further on obliged to communicate this assignment to the borrowers. If the Purchaser does not immediately cede received amounts from assigned book accounts to the Supplier, he shall in trust and free of charge keep them for the Supplier.
  6. Processing or modification of the goods by the Purchaser shall always be done for the Supplier, without any obligation arising for him. If the delivery items are processed with other items not belonging to the Supplier, then he acquires co-ownership of the new item in proportion of the value of the delivery items to the other processed items at the time of processing.
  7. If the delivery items are inextricably combined with other items not belonging to the Supplier, then he acquires co-ownership of the new item in proportion of the value of the delivery items to the other processed items. The Purchaser shall keep the co-ownership free of charge for the Supplier.
  8. The Purchaser shall inform the Supplier forthwith of any seizure or other act of intervention by third parties.
  9. Where the Purchaser fails to fulfil its duties, including failure to make payments due, the Supplier shall be entitled to cancel the contract and take back the Retained Goods in the case of continued failure following expiry of a reasonable time set by the Supplier; the statutory provisions that a time limit is not needed remain unaffected. The Purchaser shall be obliged to surrender the Retained Goods.

IV. Time for Delivery and Delay

  1. Times set for Supplies can only be observed if all Documents to be supplied by the Purchaser, necessary permits, releases, especially concerning plans, are received in time and if agreed terms of payment and other obligations of the Purchaser are fulfilled. Unless these conditions are fulfilled in time, times set shall be extended appropriately; this shall not apply where the Supplier is responsible for the delay.
  2. If non-observance of the times set is due to force majeure such as mobilization, war, rebellion or similar events, e.g. strike or lockout, such time shall be extended accordingly.
  3. If the Supplier is responsible for the delay (hereinafter referred to as “Delay”) and the Purchaser demonstrably suffered a loss therefrom, the Purchaser may claim a compensation as liquidated damages of 0.5% for every completed week of Delay, but in no case more than a total of 5% of the price of that part of the supplies which because of the Delay could not be put to the intended use.
  4. Purchaser’s claims for damages due to delayed Supplies as well as claims for damages in lieu of performance exceeding the limits specified in No. 3 above shall be excluded in all cases of delayed Supplies even upon expiry of a time set to the Supplier to effect the Supplies. This shall not apply in cases of mandatory liability based on intent, gross negligence, or due to injury of life, body or health or if it is a matter of infringement of obligations essential to the contract. Cancellation of the contract by the Purchaser based on statute shall be limited to cases where the Supplier is responsible for the delay. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
  5. At the Supplier’s request the Purchaser shall declare within a reasonable period of time whether the Purchaser cancels the contract due to the delayed Supplies or insists on the Supplies to be carried out.
  6. If dispatch or shipment is delayed at the Purchaser’s request by more than one month after notice of the readiness for dispatch was given, the Purchaser may be charged, for every month commenced, storage costs of 0.5% of the price of the items of Supplies, but in no case more than a total of 5%. The parties to the contract may prove that higher or, as the case may be, lower storage costs have been incurred.

V. Transfer of Risk

  1. Even where delivery has been agreed freight free, the risk shall pass to the purchaser as follows:
    1. if the supplies do not include assembly or erection, at the time when the supplies are shipped or picked up by the carrier. All supplies will be insured against the usual risks of transport at the expense of the purchaser. If the purchaser organises the collection all risks are transferred to him at the moment of pick up.
    2. if the supplies include assembly or erection, at the day of taking over in the own works or, if so agreed, after a fault-free trial run.
  2. The risk shall pass to the purchaser if dispatch, shipping, the start or performance of assembly or erection, the taking over in the own works or the trial run is delayed for reasons for which the purchaser is responsible or if the purchaser has otherwise failed to accept the supplies.

VI. Erection and Assembly

Unless otherwise agreed in writing, assembly/erection shall be subject to the following provisions:

  1. Before the erection work starts, the Purchaser shall make available of its own accord any information required concerning the installation.
  2. Prior to assembly or erection, the materials and equipment necessary for the work to start must be available on the site of assembly/erection and any preparatory work must have advanced to such a degree that assembly/erection can be started as agreed and carried out without interruption.
  3. If assembly, erection or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall bear the reasonable costs incurred for idle times and any additional travelling of the Supplier or the erection personnel.
  4. If, after completion, the Supplier demands acceptance of the Supplies, the Purchaser shall comply therewith within a period of two weeks. In default thereof, acceptance is deemed to have taken place. Acceptance is deemed to have been effected if the Supplies are put to use, after completion of an agreed test phase, if any.

VII. Receiving of Supplies

The Purchaser shall not refuse to receive Supplies due to minor defects.

VIII. Defects as to Quality

The Supplier shall be liable for defects as to quality („Sachmängel“, hereinafter referred to as „Defects“) as follows:

  1. All parts or services where a Defect becomes apparent within the limitation period shall, at the discretion of the Supplier, be repaired, replaced or provided again of free charge irrespective of the hours of operation elapsed, provided that the reason fort he Defect had already existed at the time when the risk passed. Only the contract partner of the Supplier is entitled to guarantee claims.
  2. Claims based on Defects are subject to a limitation period of 24 months. This provision shall not apply where longer periods are prescribed by law according to Sec. 438 para. 1 No. 2 (buildings and things used for a building), Sec. 479 para. 1 (right of recourse), and Sec. 634a para. 1 No. 2 (defects of a building) German Civil Code („BGB“), as well as in cases of injury of life, body or health, or where the Supplier intentionally or grossly negligently fails to fulfil its obligation or fraudulently conceals a Defect. The legal provisions regarding suspension of expiration („Ablaufhemmung“), suspension („Hemmung“) and recommencement of limitation periods remain unaffected.
  3. Notifications of Defects shall in compliance with Sec. 377 of the German Commercial Code („HGB“) immediately, in case of apparent Defects within a preclusion period of three days after handover to the customer, in case of hidden Defects within three days after their discovery, be communicated in writing. A notification of Defect is only valid in writing and in case of timely receiving at the Supplier. The date of the post mark is decisive. When the goods are delivered, the customer shall check them for completeness immediately.
  4. In the case of notification of a Defect, the Purchaser may withhold payments to a reasonable extent taking into account the Defect occurred. The Purchaser, however, may withhold payments only if the subject-matter of the notification of the Defect occurred is justified beyond doubt. Unjustified notifications of Defect shall entitle the Supplier to have its expenses reimbursed by the Purchaser.
  5. The Supplier shall first be given the opportunity to supplement its performance („Nacherfüllung“) within a reasonable period of time.
  6. If supplementary performance is unsuccessful for the second time, the Purchaser shall be entitled to cancel the contract or reduce the remuneration, irrespective of any claims for damages it may have according to Art. XI
  7. There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, of only minor impairment of usefulness, of natural wear and tear or damage arising after the transfer of risk from faulty or negligent handling, excessive strain, unsuitable equipment, defective workmanship, inappropriate foundation soil or from particular external influences not assumed under the contract, or from non-reproducible software errors. Claims based on defects attributable to improper modifications or repair work carried out by the Purchaser or third parties and the consequences thereof shall be likewise excluded.
  8. For repeat orders and production deliveries, customer-specific software is considered as approved within the meaning of an acceptance test.
  9. The Purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance, including costs of travel and transport, labour, and material, to the extent that expenses are increased because the subject-matter of the Supplies was subsequently brought to another location than the Purchaser’s branch office, unless doing so complies with the intended use of the Supplies.
  10. The Purchaser’s right of recourse against the Supplier pursuant to Sec. 478 BGB is limited to cases where the Purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on Defects. Moreover, No. 8 above shall apply mutatis mutandis to the scope of the right of recourse the Purchaser has against the Supplier pursuant to Sec. 478 para. 2 BGB.
  11. Furthermore, the provisions of Art. XI (Other Claims for Damages) shall apply in respect of claims of damages. Any other claims of the Purchaser against the Supplier or its agents or any such claims exceeding the claims provided for in this Art. VIII, based on a Defect, shall be excluded.

IX. Industrial Property Rights and Copyright; Defects in Title

  1. Unless otherwise agreed, the Supplier shall provide the Supplies free from third parties’ industrial property rights and copyrights (hereinafter referred to as „IPR“) with respect to the country of the place of destination. If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR with respect to the Supplies made by the Supplier and then used in conformity with the contract, the Supplier shall be liable to the Purchaser within the time period stipulated in Art. VIII No. 2 as follows:
    1. The supplier shall choose whether to acquire, at its own expense, the right to use the IPR with respect to the Supplies concerned or whether to modify the Supplies such that they no longer infringe the IPR or replace them. If this would be unreasonable to demand from the Supplier, the Purchaser may cancel the contract or reduce the remuneration pursuant to the applicable statutory provisions.
    2. The Supplier’s liability to pay damages shall be governed by Art. XI.
    3. The above obligations of the Supplier shall only apply if the Purchaser (i) immediately notifies the Supplier of any such claim asserted by the third party in writing, (ii) does not concede the existence of an infringement and (iii) leaves any protective measures and settlement negotiations to the discretion of the Supplier. If the Purchaser stops using the Supplies in order to reduce the damage or for other good reason, it shall be obliged to point out to the third party that no acknowledgement of the alleged infringement may be inferred from the fact that the use has been discontinued.
  2. Claims of the Purchaser shall be excluded if it is itself responsible for the infringement of an IPR.
  3. Claims of the Purchaser shall also be excluded if the infringement of the IPR is caused by specifications made by the Purchaser, to a type of use not foreseeable by the Supplier or to the Supplies being modified by the Purchaser for being used together with products not provided by the Supplier.
  4. In addition, with respect to claims by the Purchaser pursuant to No. 1 a) above, Art. VIII Nos. 4, 5, and 9 shall apply mutatis mutandis in the event of an infringement of an IPR.
  5. Where other defects in title occur, Art. VIII shall apply mutatis mutandis.
  6. Any other claims of the Purchaser against the Supplier or its agents or any such claims exceeding the claims provided for in this Art. IX, based on a defect in title, shall be excluded.

X. Impossibility of Performance; Adaptation of Contract

  1. To the extent that Supplies are impossible to be carried out, the Purchaser shall be entitled to claim damages, unless the Supplier is not responsible for the impossibility. The Purchaser’s claim for damages shall, however, be limited to an amount of 10% of the value of the part of the supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in the case of mandatory liability based on intent, gross negligence or injury of life, body or health or obligations essential to the contract; this does not imply a change in the burden of proof to the detriment of the Purchaser. The right of the Purchaser to cancel the contract shall remain unaffected.
  2. Where unforeseeable events within the meaning of Art. IV No. 2 substantially change the economic importance or the contents of the Supplies or considerably affect the Supplier’s business, the contract shall be adapted taking into account the principles of reasonableness and good faith. Where doing so is economically unreasonable, the Supplier shall have the right to cancel the contract. If the Supplier intends to exercise its right to cancel the contract, it shall notify the Purchaser thereof without undue delay after having realised the repercussions of the event; this shall also apply even where an extension of the delivery period had previously been agreed with the Purchaser.

XI. Other Claims for Damages

  1. Any claims for damages and reimbursement of expenses the Purchaser may have (hereinafter referred to as „Claims for Damages“), based on whatever legal reason, including infringement of duties arising in connection with the contract or tort, shall be excluded.
  2. The above shall not apply in the case of mandatory liability, e. g. under the German Product Liability Act („Produkthaftungsgesetz“), in the case of intent, gross negligence, injury of life, body or health, or breach of a condition which goes to the root of the contract („wesentliche Vertragspflichten“). However, Claims for Damages arising from a breach of a condition which goes to the root of the contract shall be limited to the foreseeable damage which is intrinsic to the contract, unless caused by intent or gross negligence or based on liability for injury of life, body or health. The above provision does not imply a change in the burden of proof to the detriment of the Purchaser.
  3. To the extent that the Purchaser has a valid Claim for Damages according to this Art. XI, it shall be time-barred upon expiration of the limitation period applicable to Defects pursuant to Art. VIII No. 2. In the case of claims for damages under the German Product Liability Act, the statutory provisions governing limitation periods shall apply.

XII. Venue and Applicable Law

  1. If the purchaser is a businessman, sole venue for all disputes arising directly or indirectly out of the contract shall be the Supplier’s place of business. However, the Supplier may also bring an action at the Purchaser’s place of business.
  2. Legal relations existing in connection with this contract shall be governed by German substantive law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).