General Conditions Of Sales of TTI Inc. Subsidiary Germany

1. General provisions, scope of application

  1. All sales shall be governed exclusively by these Terms and Conditions of Sale of TTI. TTI shall not recognize any conflicting conditions of the purchaser or conditions that differ from TTI’s Sales Terms and Conditions unless TTI has explicitly consented in writing to their applicability. Any conflicting conditions of the purchaser or conditions that differ from these General Sales Terms and Conditions are herewith contradicted. TTI’s Sales Terms and Conditions shall apply even if TTI, with knowledge of conflicting conditions of the purchaser or conditions that differ from its terms, executes delivery to the purchaser without reservation.
  2. A conclusion of a contract shall not fail due to general terms and conditions that contradict each other. Insofar as conflicting general terms and conditions correspond to each other, the conforming provisions shall apply. Moreover, those terms of TTI shall be deemed to have been agreed which correspond to non-contradicting terms of the purchaser’s general terms and conditions. However, those provisions of the purchaser’s general terms and conditions which do not correspond to the content of TTI’s General Terms and Conditions shall not form part of the contract. In all other cases, the provisions of the German Civil Code [BGB] shall apply.
  3. All agreements made between TTI and the purchaser must be recorded in writing. This also applies to a revocation of the requirement that such agreement be in writing.
  4. TTI’s Sales Terms and Conditions only apply to entrepreneurs (Section 14 of the German Civil Code [BGB]), legal persons under public law or special public funds under public law as defined by Section 310 of the German Civil Code [BGB].

2. Acceptance of orders

All merchandise orders must be accepted in writing by a duly authorized representative of TTI. A fictitious acceptance by which uncontradicted orders are to be deemed to have been accepted does not exist.

Changes made to the order after its acceptance shall only become effective if they are confirmed in writing by a duly authorized representative of TTI. Unilateral changes to the order by the purchaser are ineffective.

3. Contract rescission/order cancellation

Orders accepted by TTI may not be cancelled unilaterally by the purchaser, but only with the written approval/consent of TTI, regardless of the reason for cancellation or rescission and without limitation of the rights and/or damage compensation claims to which TTI is thus entitled, unless the contracting party is entitled to a legal right of rescission. The purchaser shall be at liberty to show that TTI incurred no damages or lesser damages; TTI shall be at liberty to assert greater damages.Special orders for merchandise not ordinarily in stock or prefabricated according to the manufacturer’s or customer’s specification cannot be cancelled or rescinded.

4. Prices and terms of payment

  1. Unless otherwise indicated in the order confirmation, TTI’s prices shall be ex TTI’s registered office or ex-factory or warehouse, exclusive of packaging and shipping, which shall be billed separately. Packaging costs are to be borne by the purchaser even if TTI takes back the packaging upon the purchaser’s request.
  2. Value-added tax as required by law is not included in the prices. It is indicated separately on the invoice in the amount required by law on the date of delivery or performance.
  3. The deduction of cash discounts shall require special written arrangements. An unilateral cash discount deduction by the purchaser shall not be recognized by TTI.
  4. The total gross invoice amount shall be due and payable within 30 days immediately upon receipt of the invoice without any deduction. The customer shall be in default of payment if the invoice is still unpaid 30 days after its receipt unless individually otherwise agreed by contract. The authoritative date of payment shall be the date of receipt by TTI. If the purchaser is in payment arrears, TTI shall be entitled to charge penalty interest at the respective applicable statutory default interest rate (at the time of drafting these Sales Terms and Conditions in January 2016: in the amount of 9% p.a. above the respective baseinterest rate of the European Central Bank). If TTI can show greater damages due to delay, it shall be entitled to assert them. The purchaser shall be entitled, however, to show TTI that TTI incurred no or substantially lesser damages as a consequence of the delayed payment.
  5. Checks shall be accepted only subject to collection. If a credited amount is redebited, the purchaser must pay all damages thus incurred, including reasonable legal fees. TTI may apply any checks received from the purchaser toward the purchaser’s obligation to TTI arising from this or any other transaction, regardless of any statement made on the check or in relation thereto. Acceptance of a partial payment does not signify waiver by TTI of total payment of all outstanding amounts owed by the purchaser to the seller.
  6. TTI may refuse to supply merchandise on credit to the purchaser at any time. Merchandise supplied to the purchaser for payment upon delivery or similar methods are subject to these Sales Terms and Conditions.
  7. The purchaser may declare a set-off to TTI only if his or her counterclaims have been decided finally and absolutely, are uncontested, or are recognized and acknowledged by TTI.
  8. Unless anything else to the contrary has been agreed, TTI reserves the right to raise the selling price unilaterally for merchandise ordered from TTI if TTI’s costs rise due to price increases by TTI’s suppliers and if the merchandise has not yet been shipped from TTI’s registered office. In the event of a price increase by the supplier, the selling price stated to the purchaser will be raised by the same percentage as TTI’s costs for the merchandise have risen due to the price increase by the supplier.

5. Delivery period and delivery

  1. TTI is obligated solely to provide merchandise only after clarification of all technical matters. Insofar as merchandise is to be manufactured according to the customer’s specifications, TTI shall not be obliged to manufacture and deliver the merchandise until the purchaser has definitely given the go ahead for production. This does not apply to the production and delivery of merchandise according to the manufacturer’s specification. This implies and requires that the purchaser duly fulfils all agreed and other obligations properly in good time.
  2. The indication of delivery times by TTI shall be non-binding unless it has been marked as binding expressly and in writing.
  3. If the purchaser defaults in accepting delivery of merchandise or violates other participation obligations, TTI shall be entitled to require compensation for damages thus incurred by TTI, including any added expenses. In this case, the risk of accidental destruction or accidental deterioration of the merchandise devolves upon the purchaser as the purchaser enters default in accepting delivery. Likewise, the purchaser enters default in accepting delivery and shall be liable for the accidental destruction of the merchandise if he is prevented from accepting delivery due to acts of God. Acts of God on the side of the purchaser neitherentitle the latter to rescind the contract nor hold him free and harmless from his obligation to accept delivery.
  4. TTI shall not be responsible for arrears in delivery or performance due to reasons beyond its control. Such reasons include – without restriction or limitation – acts of God, actions taken or refrained from by the purchaser or by civil or military authorities, fire, strike, epidemics, quarantine regulations, floods, earthquakes, unrest, war, shipping delays, etc., as well as the impossibility of obtaining labour, materials or supplies. In case of delay, any contractually agreed delivery deadline will be extended by a period corresponding to the time lost due to such delay, without TTI incurring obligations to pay compensation orcontractual penalties by this.
  5. TTI is entitled to refuse or delay the delivery of merchandise if the purchaser fails to make immediate payment of amounts due and payable, regardless of whether such amounts are the result of the same or another contractual relationship with TTI.
  6. TTI may provide merchandise falling under the present provisions at any time or in several partial shipments within the period set in the respective order.
  7. All stated prices and shipped merchandise is F.O.B. ex TTI’s registered office or ex factory or warehouse. In particular, this means that the legal regulations regarding sale by delivery to another location are applicable as dealt with in Section 447 of the German Civil Code [BGB]. That in turn means that the purchaser has to bear all expenses and risk of loss or damage from the time at which the merchandise leaves the place of manufacture or storage. Rights to the merchandise and the risk of loss, damage, or accidental destruction devolve upon the purchaser when TTI gives the merchandise to the carrier for shipment. The purchaser pays all freight and shipping costs, as well as any applicable insurance premiums for shipment of the merchandise, subject to written approval of contrary arrangements by TTI. Unless the purchaser instructs otherwise, TTI may itself determine the carrier, shipping method and transport route.

6. Transport insurance

If so desired by the purchaser when he places his order, TTI will provide transport insurance coverage for the merchandise shipment. Costs so incurred are paid by the purchaser.

7. Warranty for defects

  1. The purchaser’s rights under the warranty require that he or she has properly fulfilled the purchaser’s inspection and notification obligation under Sections 377, 381 of the German Commercial Code [HGB]. The purchaser has to inspect the merchandise entirely, irrespective of whether the delivery only constitutes a transit business for the purchaser. It is assumed that the purchaser has accepted the merchandise if he or she has not refused acceptance within a reasonable period. TTI does not waive its right of objection on the grounds of lateness. Claims due to delay in delivery are ruled out unless made prior to receipt of the merchandise. Merchandise acceptance represents a waiver of any and all claims due to delay in delivery. Return shipments will be accepted only if a “Return Material Authorization” is first obtained from TTI. Merchandise must be returned in the original packaging and must conform to the instructions of the office that issued the aforementioned “RMA”. Returned merchandise in electrostatic packaging will be accepted only if such packaging has not been opened.
  2. TTI neither provides any warranty whatsoever for merchandise sold to the purchaser, nor any assurances of its suitability for particular purposes, so far legally permissible. TTI agrees to transfer to the purchaser any transferable warranties that TTI has received from the manufacturer of the merchandise sold to the purchaser. Value-addition work performed by TTI corresponds to the purchaser’s applicable specifications for such work.
  3. Insofar as TTI is obligated to provide a warranty, the warranty period shall be one year. Any suspension or restart of the limitation periods is excluded.
  4. TTI shall not be obliged to provide or procure merchandise beyond the scope of warranty. In particular, TTI shall not be obligated to provide any spare parts.
  5. To the extent the merchandise has a defect for which TTI is responsible, TTI shall be entitled to correct the defect or provide a replacement, at its choice. For defect correction of the product, TTI is obligated to pay all expenses necessary for the purpose of correcting the defect of thedelivered product, in particular costs of transport, travel, labor and materials, insofar as such costs are not increased due to the merchandise having been moved to alocation other than the place of performance. TTI does not waive the right to be given the opportunity to remedy a fault, even if the transaction is an urgent one for the purchaser. The remedy includes neither the disassembly of the defective item nor its reassembly, unless the reassembly had been initially contractually agreed.
  6. Additional claims of the purchaser are ruled out, regardless of their cause in law, insofar as no other provisions are set forth hereinafter, including Clause 8 below. Therefore, TTI assumes no liability for any damage caused to the deliverable; in particular, TTI shall not be liable for lost profits or other financial detriment to the purchaser. In no case will TTI be liable for indirect accessory or consequential damage.
  7. Compensation of the purchaser on the basis of a payment claim by the purchaser is limited to the purchase price paid for the merchandise, regardless of the type of the payment claim, arising either from warranty or from the contract.
  8. Claims for damages – for whatever legal reason – come under the statute of limitations after one year. Claims for personal injuries and claims under the German Product Liability Act shall be excluded herefrom.

8. Aggregate liability

  1. Further liability for damage compensation is precluded hereby, irrespective of the legal nature of the asserted claim. This shall not apply in cases of injury to life, body or health as far as the injury arises from a willful or negligent breach of duty on the part of TTI or from a willful or negligent breach of duty on the part of a legal representative or vicarious agent of TTI. The foregoing shall apply mutatis mutandis to damages arising from a not inconsiderable violation of an essential contractual obligation (obligation the fulfillment of which constitutes a condition sine qua non for the due execution of the contract and on the observation of which the contractual partner regularly relies and may rely); in this case, however, liability shall be limited to compensation for the foreseeable, typically occurring damage. Furthermore, liability for other damage shall not be precluded if the latter arises from a willful or grossly negligent breach of duty on the part of TTI, or from a willful or grossly negligent breach of duty on the part of one of TTI’s legal representatives or vicarious agents.
  2. The stipulation contained in paragraph 1 shall not apply to claims pursuant to Sections 1 and 4 of the German Product Liability Act. Any possible duties on the part of TTI to exempt the purchaser from third party claims only exist insofar as they are mandatory under the german product liability act. The same shall apply for initial inability and impossibility for which the party is responsible.

9. Retention of ownership

  1. TTI shall retain ownership of the merchandise pending receipt of all payments resulting from the supply contract; the purchaser recognizes the simple and prolonged retention of ownership by TTI. TTI shall be entitled to repossess the merchandise in the event of behaviour by the purchaser in violation of the contract, especially default in payment. The repossession of the merchandise through TTI does not constitute a rescission of the contract unless so expressed by TTI explicitly and in writing. The seizure of the merchandise through TTI always signifies rescission of the contract. TTI shall be entitled to sell the merchandise following repossession; the proceeds from the sale are to be credited toward the amounts owed by the purchaser, minus reasonable sales expenses.
  2. The purchaser shall be obligated to store the merchandise orderly and to treat it with care until it is paid for in full. The purchaser shall neither pledge the purchased item subject to reservation of title to third parties nor assign it to third parties by way of security before the secured claim has been fully paid.
  3. In the event of seizures or other interventions by third parties, the purchaser must notify TTI thereof in writing without delay to enable TTI to file an action pursuant to Section 771 of the German Code of Civil Procedure (ZPO). In particular, the purchaser shall be obligated to point out the ownership status of the items to the enforcement body. To the extent that the third party is not able to reimburse TTI for court costs and other expenses associated with an action pursuant to Section 771 of the German Code of Civil Procedure (ZPO), the purchaser shall be liable for the financial loss suffered by TTI.
  4. The purchaser shall be entitled to resell the merchandise by way of a proper business transaction. The purchaser now hereby assigns to TTI all payments receivable from customers or third parties to which the purchaser becomes entitled on account of such resale in the amount of the final invoice total (including value-added tax), regardless of whether the merchandise is resold with or without processing. The purchaser shall remain authorized to collect such payments receivable even following the assignment. TTI’s authority to collect the payment itself shall remain unaffected thereby. Nevertheless, TTI undertakes to refrain from collecting the payment as long as the purchaser fulfils his or her payment obligations from the agreed proceeds, does not fall into payment arrears, and inparticular no application is made to open bankruptcy or composition proceedings and there is no stoppage of payments. If this is the case, however, TTI may require the purchaser to disclose to TTI the assigned receivables and the respective debtors, to provide all information necessary for collection, to relinquish the associated records, and to notify the debtors (third parties) of the assignment. In this case, TTI shall furthermore be entitled to revoke the purchaser’s authority to resell and process, transform or blend the purchased item subject to reservation of title to such extent.
  5. Processing or modification of the merchandise by the purchaser shall always be performed on TTI’s behalf. If the merchandise is processed with other objects not belonging to TTI, then TTI shall acquire co-ownership of the new item in the ratio of the value of the merchandise to the other processed objects at the time they are processed. The item created through such processing shall also be covered by the same stipulations as the merchandise supplied with rights reserved.
  6. If the merchandise is inseparably combined with other objects not belonging to TTI, then TTI shall acquire co-ownership of the new item in the ratio of the value of the merchandise to the other combined objects at the time they are combined. If they are combined in such a way that the purchaser’s item is considered the main item, then it shall be considered agreed that the purchaser shall transfer to TTI prorated co-ownership. The purchaser holds the sole property or jointly owned property thus created in safe custody for TTI.

10. Patents, violations

TTI shall provide no assurances whatsoever that merchandise sold to the purchaser is free of third party legal claims based on a violation or infringement of a patent, trademark or the like, and shall provide no warranty and liability whatsoever in the event of a violation in connection with the merchandise. The purchaser recognizes this nonwarranty. The purchaser rather has to ensure by himself or herself that the products sold by him or her in the respective countries do not violate any third party rights. The purchaser consents to address himself or herself only to the manufacturer or licensor of the merchandise in the event of a claim based on a violation. In addition, the purchaser consents to protect, defend, and indemnify TTI against amounts, costs, expenses, and legal fees which TTI incurs vis-à-vis the seller in consequence of a payment claim, a cause of action, or judgment, or which TTI must pay, which result from utilization, alteration, or improvement of the merchandise acquired by the purchaser, unless such utilization, alteration, or improvement was approved in writing by the manufacturer or licensor of the merchandise.

11. Assembly and installation

The purchaser shall be solely responsible for assembling, installing, and operating the merchandise sold herein, including – without limitation – for obtaining all approvals, licenses, and certificates required for assembling, installing, operating and selling this merchandise.

12. Technical consultation and data

Any technical consultation or advice offered or given in connection with the use of the merchandise shall be a gratuitous favour for the purchaser; TTI shall bear no responsibility and assume no liability whatsoever for the content, application or consequences of any such consultation or advice. The purchaser may not utilize, reproduce, or disclose technical data provided or disclosed by TTI without the seller's prior written approval. Exceptions shall be assembly, installation, operation, and maintenance of the merchandise acquired by the purchaser.

13. Software

Any computer software to be supplied to the purchaser by TTI shall be provided by way of license directly to the purchaser by the owner of the software or by third parties in accordance with a separate licensing agreement or other arrangement. The purchaser shall confirm receipt of a separate contract in which the license is granted for the software supplied to the purchaser. The purchaser shall acknowledge that TTI is not a party to such license for providing software. The purchaser shall consent to address himself or herself directly to the licensor in the event of claims based on maintenance or support or violations or warranties in connection with software provided pursuant to these provisions.

14. Rights of seller

  1. In the event the purchaser falls into arrears with his or her payments, the purchaser shall pay all costs incurred by TTI in collecting amounts owed by the purchaser, including reasonable legal fees and collection feeds. TTI is entitled to assign its claims against the purchaser to third parties or/and to have them collected by third parties.
  2. If TTI waives its rights in the event of violation of these provisions and conditions or in case of payment arrears, this shall not constitute a waiver of such rights in case of subsequent violations or omissions.

15. Agreement, amendments/supplements to agreement

The present agreement shall represent the sole and total agreement between the parties with regard to the subject matter of the contract, replacing all earlier or contemporaneous agreements between them, whether written or oral, regarding that subject matter. Previous transactions between the parties and procedures customary in the industry shall not be authoritative as an interpretation or amendment of a provision hereof. Acceptance or tolerance in case of a performance rendered in the context hereof shall not be authoritative for determining the meaning of the present agreement, even if the accepting or tolerating party had knowledge of the type of performance and had the opportunity to object. Any later changes to this agreement shall be binding upon TTI only if made in writing and signed by both the purchaser and TTI. An assignment by the purchaser of this agreement or the rights arising therefrom shall be valid only with the written consent of TTI.

16. Purchaser's provisions and conditions

  1. TTI shall strive to serve its customers promptly and efficiently. Accordingly, TTI shall provide its merchandise and shall render its services exclusively in accordance with the provisions and conditions set forth herein.
  2. Contract fulfillment by TTI shall depend exclusively on the consent of the customer on TTI’s terms of sale, unless TTI expressly consents beforehand in writing to different arrangements. In the absence of such agreement, the service and/or delivery shall begin only by way of accommodating the purchaser; this shall not establish an act of acceptance of any or all of the purchaser's provisions and conditions, and cannot be interpreted as such.
  3. If no contract is concluded in writing beforehand by mutual consent, then acceptance of the merchandise or services shall be considered acceptance of the provisions and conditions named herein.

17. Export control

  1. TTI points out that the delivery of goods (merchandise, software, technology) may be subject to restrictions and prohibitions under the export control law. In particular, these are German and European requirements of the foreign trade legislation. Furthermore, there are European and national embargo regulations against certain countries and persons. These embargo regulations can prohibit deliveries or make them subject to approval. U.S. made goods or goods with a 10 or 25% share of U.S. made goods, goods from U.S. controlled companies may be subject to the U.S. (re-)export laws, in addition to the above mentioned laws and regulations.
  2. The purchaser undertakes to recognize and comply with all applicable export control regulations and – insofar as the delivery of the goods is subject to U.S. laws – also with the U.S. (re-)export regulations. In particular, the purchaser undertakes to ensure that the use to which the goods are put either directly or indirectly is not connected in any way to the development, manufacture, handling, operation, maintenance, storage, positioning, identification or the proliferation of chemical, biological or nuclear weapons and their carrying systems. Furthermore, the purchaser undertakes to ensure that the end use to which the goods are put either directly or indirectly is not of a military nature in a country subject to a weapons embargo as defined in Art. 4(2) of Regulation (EC) No. 428/200, in acountry mentioned in the German Country List K or in the People’s Republic of China, unless the purchaser is in the possession of the required approvals. Furthermore, the purchaser undertakes to ensure that the use to which the goods are put either directly or indirectly is not of a civilian nuclear nature in the countries mentioned in Section 9 Paragraph 1 of the German Foreign Trade and Payments Ordinance [AWV], unless he or she has the required approvals. Moreover, the purchaser undertakes not to sell, export, re-export, supply or transfer the goods or to make them otherwise accessible – neither directly nor indirectly – to persons, companies, institutions, organizations or countries if this violates European, German or, where applicable, U.S. (re-)export regulations. In the event of a resale or transfer of the goods supplied, the purchaser undertakes to point out the regulations under export control law to his customer and to transfer the obligations herefrom. Upon TTI’s request, the purchaser shall be obligated to issue documents indicating the final destination of the goods and to send the original documents to TTI in order to be able to prove the goods’ final destination and end use. The purchaser takes note of the fact that the statutory regulations stated in clause 1 are subject to constant modifications and adjustments, and shall be applicable to the contract as amended from time to time. The purchaser must inform himself about the relevant regulations and is himself responsible for ensuring compliance with them.
  3. The purchaser shall be liable towards TTI to the full extent for any damages caused by the purchaser due to a culpable failure to observe applicable export control regulations or U.S. (re-)export regulations. In this respect, the purchaser shall hold TTI harmless from any third party claims.
  4. This offer (contract, order confirmation) and the execution of the contract are subject to the proviso that the required export or transport licenses or other licenses or approvals under foreign trade law, if applicable, are granted by the authorities in charge and that there are no other conflicting legal impediments arising from regulations under export control law which are to be complied with by TTI as exporter or transferor or by one of TTI’s suppliers.

18. General provisions

  1. The present agreement and the performances to be rendered by the parties shall be governed by and construed in accordance with the laws of the Federal Republic ofGermany. The parties hereby explicitly rule out the applicability of the United Nations' law on the international sale of goods and the Hague Convention on the law governing international sales agreements for movable property/Uniform Law on the Sale of Goods. All provisions, conditions, and agreements contained herein shall apply for all legal successors of the purchaser and shall be binding upon them.
  2. If a provision or part of the present agreement is or becomes invalid, illegal, contrary to law or to public policy, or unenforceable, the remaining provisions or portions thereof shall remain unaffected thereby.
  3. The individual Section headings employed herein serve only to help the parties to categorize performances hereunder. The interpretation of the provision is not affected by this.
  4. These Conditions of Sale were drawn up in German and then translated into English. In general, the English version of these Conditions of Sale shall be the basis for the work of the parties, provided, however, that in the case of a dispute between the parties with respect to the interpretation of any clause the German version shall determine such dispute.

19. Legal venue/place of performance

  1. Provided that the purchaser is a merchant or a legal person under public law or a special asset under public law as defined by Section 38 of the German Code of Civil Procedure [ZPO], the courts at the location of the registered office of TTI shall have exclusive – even international – jurisdiction for all disputes arising directly or indirectly from the contractual relationship; the same applies if the purchaser is an entrepreneur as defined by Section 14 of the German Civil Code [BGB]. However, TTI shall also be entitled to bring action against the purchaser at the place of performance or at his or her place of general jurisdiction. Overriding statutory provisions, particularly with respect to exclusive competencies, remain unaffected.
  2. Unless otherwise indicated in the order confirmation, the place of performance shall be the location of TTI's registered office.