Buss-SMS-Canzler GmbH: General Terms and Conditions for the purchase of system components and services (Status July 2008)

1.   Exclusive Validity

1.1. These General Terms and Conditions shall apply for all signed contracts and contractual negotiations concerning the purchase of system components, machines, devices, instruments, technical items and services. In our General Terms and Conditions, "Deliverable" generally refers to any object delivered by the supplier; this includes services provided by the supplier. "Customer" refers to the party entitled to the delivery of a product or service in accordance with the contract signed or under negotiation; "Supplier" refers to the party under obligation to deliver a product or services.

1.2. Divergent or additional provisions, including the Supplier's General Terms and Conditions, will only be valid if agreed in writing, even if the Supplier's General Terms and Conditions conflict with or deviate from ours and we do not expressly point this out in writing or accept a delivery without reservation.

1.3. Amendments and additions to the contract and the General Terms and Conditions must be made in writing.

1.4. Our Terms and Conditions of Purchase only apply to entrepreneurs as defined by section 310, subsection 1 of the German Civil Code (Bürgerliches Gesetzbuch – "BGB").

1.5. Our Terms and Conditions of Purchase shall also be applicable for all future business transactions with the Supplier.

2.  Quotation

2.1. The Customer issues an inquiry requesting the Supplier to submit a quotation free of charge. In the quotation, the Supplier must take account of descriptions and goals specified by the prospective customer and expressly point out any deviations from these; the Supplier must inform the Customer of all doubts arising for the Supplier on the basis of the specified descriptions and goals. The Supplier must inform the Customer of any risk that the Supplier's complying with the specified descriptions and goals may cause damage to the Customer or the Customer's customer or if the deliverable described appears to be unfit for the envisaged purpose.

2.2. The Supplier is not entitled to any payment by the Customer if the Customer does not accept the quotation; in particular, this also applies for the costs of contract negotiations, travel, drawings, plans and drafts.

3.  Purchase Order / Prices / Terms of Payment

3.1. Purchase orders will only be valid if they have been placed or confirmed by the Customer in writing.
The Supplier must confirm our purchase order, as well as his acceptance of our General Terms and Conditions, within a period of two weeks by sending back his order acceptance.

3.2. If the Supplier only accepts the purchase order with deviations, a contract is only concluded if the Supplier has expressly pointed out the deviations and the Customer has explicitly declared his acceptance of these deviations.

3.3. All order supplements, such as descriptions, drawings, requirements and other documentation, are integral parts of the purchase order.

3.4. The prices specified in the purchase order are binding. Costs of packaging and transport to the shipping address are included in these prices unless otherwise agreed upon in writing.

3.5. Invoices shall only be processed if they comply with the requirements set out in our purchase order and contain the order number specified therein; the Supplier shall be responsible for any consequences resulting from non-compliance with this obligation unless he proves that they are not caused by him.

3.6. The Supplier's invoices must contain his tax number and tax office.

3.7. Unless otherwise agreed in writing, payments shall be made within 14 days of delivery and receipt of invoice with 2% discount or net within 30 days of receipt of invoice. In case of delayed payment, we shall owe interest on arrears in the amount of 5% above the basic rate of interest according to Section 247 of the "BGB".

3.8. We are entitled to rights of offset and retention within the limits of statutory regulations.

3.9. The VAT rate applicable in each case must be specified.

3.10. We are entitled to change the time and place of delivery and type of packaging at any time in writing, with notice of at least 10 calendar days before the agreed delivery date. The same shall apply for changes to product specifications, provided these can be implemented on the basis of the Supplier's production process without considerable additional expense; as stated in the above provision, in these cases, the period of notification shall be at least 10 calendar days.

If such changes result in delivery delays that cannot be avoided with reasonable effort in the Supplier's production and business operations, the delivery date originally agreed upon shall be postponed accordingly. The Supplier will notify us in writing of any additional costs or delivery delays reasonably to be expected on the basis of a careful estimate sufficiently in advance of the delivery date, but at least within 7 working days after receiving our notification in accordance with Sentence 1.

4.   Delivery Time and Damages Caused by Delay

4.1. The delivery time (delivery date or delivery period) specified in the purchase order is binding.

4.2. The Supplier must notify us immediately if circumstances occur or are identified by him that result in his not being able to maintain the agreed delivery date.

4.3.  In case of delayed delivery, we are entitled, after written notification of the Supplier, to a flat-rate compensation for losses caused by delay in the amount of 0.3% of the goods' value per working day, on the whole, however, not more than 5.0%; further statutory claims (withdrawal and compensation for damages instead of performance) remain reserved. The Supplier is entitled to prove that the delay has only caused a minor damage or no damage at all.

4.4. Partial deliveries and early deliveries shall only be accepted by us if previously agreed upon in writing.

4.5. The Supplier must state our order number accurately on all shipping documents and delivery notes; if he fails to do so, we shall not be deemed responsible for delays in processing.

5.  Packaging, Transport, Insurance and Risk Assumption

5.1. The conditions specified in the purchase order shall apply to transport.

5.2. In lack of any contrary agreement, passing of the risk shall take place upon proper delivery to the destination specified in the purchase order, and, if the delivery includes installation, after completed installation in the place of use.

5.3. If it has been agreed that the risk should pass before the Deliverable is delivered, no transport insurance is needed on account of an existing company insurance.

5.4. The Supplier is fully responsible for appropriate packaging. If special care needs to be taken when removing auxiliary components etc., this must be pointed out by the Supplier. Reusable packaging will only be paid for if it is adequately refunded when returned.

6.  Liability

6.1. We are obligated to check any Deliverables for deviations in quality or quantity within reasonable time. Notice of such deviation shall be deemed timely if it is received by the Supplier within 14 working days of receipt of the goods or, in the case of hidden defects, within 14 days of detection. Any quality assurance agreements shall supersede this provision.

6.2. Our statutory warranty claims shall remain unaffected; in any case, we are entitled, at our choice, to rectification of any defects or delivery of a new product by the Supplier. Our right to compensation for damages, in particular compensation for damages instead of performance, shall expressly remain unaffected. In cases of even minor deviations from the agreed condition of the Deliverable or minor impairments of its usability, we are entitled to withdraw from the contract and to compensation for damages instead of full performance. Rectification will be deemed failed after one unsuccessful attempt.

6.3. We are entitled to rectify defects ourselves at the Supplier's expense in cases of imminent danger or special urgency.

6.4. If defects are rectified, the Supplier must bear all costs required for defect rectification, in particular transport, work and material costs, in so far as these are not increased by the Deliverable having been transferred to a different place from the place of performance.

6.5. As a rule, the Supplier guarantees the Deliverable to be free of defects that can impair its contractually agreed suitability, i.e. the prescribed services and specifications to be fulfilled. Before the contract is concluded, the Supplier must notify us of possible properties of the Deliverable that could interfere with its being used for the purpose contractually agreed upon. The Deliverable must meet the acknowledged engineering standards, applicable safety and accident prevention regulations and the public regulations at its destination. The Supplier shall be deemed fully responsible for the supply and performance of necessary additional supplies and performances, even when not at fault.

6.6. If the Deliverable or parts or components thereof are repaired, rectified or replaced due to such regulations, liability shall start on the day the repair, rectification or replacement is completed.

6.7. If the contract includes a performance guarantee and a performance test designed to prove that the performance guarantee is fulfilled, the performance guarantee shall be expected to cover unbroken fulfilment of the performance agreed upon during the test. The test must be carried out within the period agreed upon and must not be repeated more than twice. If the Deliverable does not live up to the performance guarantee, we shall be entitled to the rights set out above.

6.8. To the extent the Supplier is responsible for a damage caused by a product, he shall insofar be under the obligation to indemnify us upon first demand against any claims for damages by third parties as the cause lies within his sphere of control and organization and he himself is liable in relation towards third parties. In this context, the Supplier shall also undertake to reimburse any expenses resulting from or in connection with a recall action carried out by us according to § 683, 670, 830, 840, 426 BGB. As far as possible and reasonable, we shall inform the Supplier about the content and extent of the recall measures to be taken and give him an opportunity to comment. Other statutory claims shall be disregarded.

6.9. The Supplier shall indemnify us against any claims asserted by our customers on the basis of advertising messages issued by the Supplier or the Supplier's supplier, e.g. the manufacturer or the assistant of one of these suppliers, and which would not hold in the same way or to the same extent without said advertising message. This provision shall apply independently of whether this advertising message has been issued before or after the conclusion of this agreement.

7.  Withdrawal Rights

7.1. Unless a delivery has been agreed upon as binding, we reserve the right to set an appropriate grace period of at least 5 and at most 10 working days.

7.2. Following the fruitless expiry of this grace period or if it becomes clear even before the delivery is due that the agreed deadline cannot be maintained or if the Deliverable proves unsuitable for the purpose contractually agreed upon before or during start-up, we can assert our full statutory warranty claims even before the Deliverable passes hands; in particular, we will be entitled to declare withdrawal or, at our option, claim compensation for damages instead of the contractual performance.

8.  Right of Inspection

8.1. The Customer reserves the right to control the progress of the work. This can neither change nor limit the Supplier's obligation to fulfil the contract.

8.2. The right of the Customer to notify defects after the completion of the Deliverable shall in no way be limited by the fact that the Customer did or could have noticed faults during inspection of the manufacturing process.

9.  Property Rights

9.1. The Supplier warrants that his delivery will not result in the violation of any rights of third parties in or outside the Federal Republic of Germany.

9.2. In the event that claims are made against the Customer by third parties, the Supplier shall indemnify us against such claims upon our first written request; we are not entitled to conclude any agreements, particularly not a settlement, with the third party without the Supplier's consent.

9.3. The Supplier's indemnity obligation applies to all our expenditures which result by necessity from or in connection with claims of third parties.

9.4. The statutory period of limitation will be 10 years, starting with the conclusion of the contract.

10.  Work on the Customer's Premises

10.1. When performing work on the Customer's or a third party's premises, the Customer's or the third party's safety instructions must be observed in addition to these General Terms and Conditions.

11.  Drawings and Operating Instructions

11.1. Before the start of the manufacturing process, detailed drawings are to be supplied to the Customer for approval upon his request, unless otherwise agreed. The Customer's approval does not release the Supplier from his responsibility for the functionality and usability of these drawings.

11.2. The final construction drawings, maintenance and operation instructions, lists of spare parts for proper maintenance of the delivery and all agreed documents and certificates must be handed over to the Customer free of charge on the date agreed upon, and, if there is no such date, upon delivery at the latest.

12. Confidentiality

12.1. All specifications, drawings etc. provided to the Supplier by the Customer with a view to manufacturing the Deliverable must not be used for any other purposes, duplicated or made accessible to third parties. Copyrights shall remain with the Customer. All documentation, including all copies and duplicates, must immediately be issued to the Customer upon request.

12.2. The Supplier must treat the purchase order and all pertaining work or deliveries confidentially.

12.3. The Customer shall treat all technical documentation provided by the Supplier or any of his subsuppliers confidentially. It shall remain the intellectual property of the Supplier or the subsuppliers.

13.  Intellectual Property

13.1. If the performance contractually agreed upon with the Supplier consists of a development order and a project planning order, the work results, as well as all copyrightable inventions and know-how, shall be the property of the Customer. The Supplier shall undertake to do all within his and his employees' power to transfer such intellectual property to the Customer and have it patented.

13.2. We reserve property rights and copyrights to pictures, drawings, calculations and other documentation; these must not be made accessible to third parties without our explicit written consent. They are to be used exclusively for manufacturing on the basis of our purchase order; upon fulfilment of the order, they must be returned to us without request. They must be kept secret from third parties; to this extent, the provision set out in Section 12 shall apply additionally.

14.  Assignment and Subcontractors

14.1. For an assignment of rights from this contract, the Supplier must primarily obtain the Customer's written consent.

15.  Reservation of Title / Customer-Owned Parts / Tools

15.1. To the extent that we supply our own components to the Supplier, these shall remain our property. Processing and transformation are undertaken by the Supplier on our behalf. If components owned by us are processed with other objects that are not owned by us, we acquire the joint property of the new object in the proportion of the value of our component (purchase price plus VAT) to the other processed objects at the time of processing.

15.2. If components supplied by us are processed with other objects that are not owned by us in such a way as to enter into an inseparable compound, we shall acquire the joint property of the new object in the proportion of the value of our own component (purchase price plus VAT) to the other compounded objects at the time of compounding. If the components are compounded in such a way that the Supplier's component is the main part of the compound, it shall be deemed part of the agreement that the Supplier shall transfer proportional joint ownership to us; the Supplier shall hold the sole or joint ownership for us.

15.3. Tools shall remain our property; the Supplier is obligated to use the tools exclusively for manufacturing the goods ordered by us. The Supplier must insure the tools owned by us at their original price against fire and water damages as well as losses caused by theft. At the same time, the Supplier cedes all claims for compensation arising from this insurance to us here and now; herewith, we accept this assignment. The Supplier is obligated to carry out all maintenance and inspection jobs as well as all regular maintenance and repair work on our tools at his own expense and as and when required. He must notify us of any malfunctions immediately; if he culpably neglects to do so, our claims for compensation of damages shall remain unaffected.

16.  Advance Payments

16.1. The Supplier can only demand advance payments on the basis of separate written agreements.

17.  Force Majeure and Statutory Limitation

17.1. The parties to the contract are not liable for any non-fulfilment of the contract due to cases of force majeure. "Force majeure" shall be taken to refer to circumstances that occur after conclusion of the contract, could not be foreseen and are objectively inevitable.

17.2. The party to the contract that invokes force majeure must immediately notify the other party in writing of the occurrence and expected duration of the force majeure event. If it neglects to do so, it may not invoke force majeure.

17.3. Upon request, the Supplier must provide the Customer with certified confirmation of the circumstances he wants to be regarded as force majeure.

17.4. The period of limitation for the Customer's claims and rights pertaining to defects of delivery and performance – independently of the legal ground – shall be 4 years. This period shall also apply for cases where claims are not based on a defect. Longer statutory periods of limitation shall remain unaffected, as will regulations pertaining to the start of the limitation period, suspension of the statute of limitations, expiry suspension of the limitation period and restart of the limitation period. Defect notifications by the Customer shall suspend the period of limitation.

18.  Spare Parts

18.1. The Supplier must provide spare parts for the products delivered to us for at least 2 years after the delivery.

18.2. If the Supplier intends to stop manufacturing spare parts for the products delivered to us, he shall notify us immediately following this decision. Subject to Subsection 1, such a decision must precede the actual production stop by at least 3 months.

19.  Applicable Law and Place of Jurisdiction

19.1. Unless otherwise agreed upon, this contract, relations preceding the contract and these Terms and Conditions of Purchase shall be subject to German law. The UN Sales Convention shall be excluded.

19.2. The UN convention on contracts for the international sale of goods ("CISG") of 04/11/1980 shall only apply for deliveries from abroad.

19.3. If individual provisions of the contract with the Supplier, including these General Terms and Conditions, are or become partially or wholly ineffective, the validity of the remaining provisions shall remain unaffected thereby. The partially or wholly ineffective provision shall be replaced by a provision whose commercial outcome shall come as close as possible to that of the ineffective provision.

19.4. The place of performance and jurisdiction is Butzbach. However, we are entitled to sue in every other legally justified place of jurisdiction in Germany or abroad.

Status 01.07.2008