GTCP

§ 1 Scope, Form

(1) These General Terms and Conditions of Purchase (the “Purchase Terms”) shall apply to all business relations between, on the one side, DYNOS GmbH and its affiliated companies (hereinafter collectively referred to as “we”) and, on the other, their business partners and suppliers (hereinafter collectively referred to as “Seller”). The Purchase Terms shall only apply if the Seller is an entrepreneur (Section 14 BGB (German Civil Code)), a legal entity under public law or a special fund under public law.

(2) The Purchase Terms shall apply, in particular, to contracts for the sale and/or delivery of goods (the “Goods”), irrespective of whether the Seller manufactures the Goods itself or purchases them from other suppliers (Sections 433, 650 BGB). Unless otherwise agreed, the Purchase Terms in the version valid at the time of our order or in any case in the version last notified to the Seller in text form shall also apply as a framework agreement for similar future contracts with the Seller without us having to refer to them again in each individual case.

(3) These Purchase Terms shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Seller shall only become part of the contract if and to the extent that we have expressly consented to their validity in writing. This requirement of consent shall apply in any case, for example even if the Seller refers to its general terms and conditions in the context of the order confirmation and we do not expressly object to this.

(4) Individual agreements (e.g. framework supply agreements, quality assurance agreements) and details in our order take precedence over the Purchase Terms. In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms published by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.

(5) Declarations and notifications of legal relevance by the Seller in relation to the contract (e.g. setting of deadlines, reminders, withdrawal) must be made in writing. Written form within the meaning of these Purchase Terms includes written and text form (e.g. letter, e-mail, fax). Statutory provisions on form and further evidence, in particular in the event of doubts about the legitimacy of the declarant, shall remain unaffected.

(6) References to the applicability of statutory provisions are for clarification only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these Purchase Terms.

§ 2 Formation of Contract

(1) Our order shall be deemed binding at the earliest upon written submission or confirmation. The Seller must point out obvious errors (e.g. spelling and calculation errors) and any incompleteness of the order (including the order documents) to us for the purpose of correction or completion before acceptance; otherwise the contract shall be deemed not to have been concluded.

(2) The Seller shall be obliged to accept our order within a period of 14 days by confirming it in writing or by executing it without reservation (e.g. by dispatching the Goods).

(3) Late acceptance shall be deemed a new offer and shall require acceptance by us.

§ 3 Delivery Time and Delay in Delivery

(1) The delivery time stated by us in the order is binding. If the delivery time is not specified in the order and has not been agreed otherwise, it shall be 3 weeks from the conclusion of the contract. The Seller is obliged to inform us immediately in writing if it is unlikely to be able to meet agreed delivery times – for whatever reason.

(2) If the Seller does not perform or does not perform within the agreed delivery time or if the Seller is in default, our rights – in particular to rescission and damages – shall be determined in accordance with the statutory provisions. The provisions in para. 3 below remain unaffected.

(3) If the Seller is in default, we may – in addition to further statutory claims – demand lump-sum compensation for our damage caused by the default in an amount of 1% of the net price per full calendar week of default, but in total not more than 5% of the net price of the Goods delivered late. We reserve the right to prove that higher damages have been incurred. The Seller shall have the right to prove that no damage at all or only significantly less damage has been incurred.

§ 4 Place of Performance, Delivery, Transfer of Risk, Default of Acceptance

(1) The Seller shall not be entitled to have the performance owed by it rendered by third parties (e.g. subcontractors) without our prior written consent. The Seller shall bear the procurement risk for its services unless otherwise agreed in individual cases (e.g. limitation to stock).

(2) Delivery shall be made free of charge within Germany to the place specified in the order. If the place of destination is not specified and nothing else has been agreed, delivery shall be made to our place of business in Troisdorf, Germany. The respective place of destination is also the place of performance for the delivery and any subsequent performance.

(3) The delivery shall be accompanied by a delivery note stating the date (of issue and dispatch), the content of the delivery (article number and quantity) and our order identification (order date and number). If the delivery note is missing or incomplete, we shall not be responsible for any delays in processing or payment resulting therefrom. A corresponding dispatch note with the same content must be sent to us separately from the delivery note.

(4) The risk of accidental loss and accidental deterioration of the Goods shall pass to us upon handover at the place of performance. Insofar as an acceptance procedure has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for the production work shall also apply accordingly in the event of an agreed acceptance procedure. If we are in default of acceptance, this shall be deemed equivalent to handover or acceptance.

(5) The statutory provisions shall apply to the occurrence of our default in acceptance. However, the Seller must also expressly offer us its performance if a specific or determinable calendar time has been agreed for an action or cooperation on our part (e.g. provision of material). If we are in default of acceptance, the Seller may demand compensation for its additional expenses in accordance with the statutory provisions (Section 304 BGB). If the contract relates to non-fungible Goods to be manufactured by the Seller (custom production), the Seller shall only be entitled to further rights if we have undertaken to cooperate and are responsible for the failure to cooperate.

§ 5 Prices and Payment

(1) The price stated in the order is binding. All prices include statutory value added tax if this is not shown separately.

(2) Unless otherwise agreed in the individual case, the price includes all services and ancillary services to be provided by the Seller (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).

(3) The agreed price is due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a correct invoice. If we make payment within 14 calendar days, the Seller shall grant us a 3% discount on the net amount of the invoice. In the case of bank transfer, payment shall be deemed to have been made on time if our transfer order is received by our bank before expiry of the payment deadline; we shall not be responsible for any delays caused by the banks involved in the payment process.

(4) We do not owe any interest on arrears prior to our being in default. The statutory provisions shall apply to our being in default of payment.

(5) We shall be entitled to offset and to invoke rights of retention as well as rely on the defence of non-performance of the contract to the extent provided by law. In particular, we are entitled to withhold payments due as long as we are still entitled to claims against the Seller arising from incomplete or defective performance.

(6) The Seller shall have a right to offset or to invoke rights of retention only in respect of counterclaims which have been determined by a final and binding decision or which are undisputed.

§ 6 Confidentiality and Retention of Title

(1) We reserve the property rights and copyrights to illustrations, plans, drawings, calculations, implementation instructions, product descriptions and other documents. Such documents are to be used exclusively for the contractual performance and must be returned to us after completion of the contract. The Seller may only make these documents accessible to those of his employees who need to know them for the execution of the contract. The documents must be kept secret from third parties, even after termination of the contract. For the purposes of the foregoing, subcontractors of the Seller shall also be deemed to be third parties, except in those instances where we have agreed in writing that documents may be made available to them. The obligation to maintain secrecy shall only expire if and to the extent that the information contained in the documents provided has become generally known. Special confidentiality agreements and statutory regulations on the protection of secrets shall remain unaffected.

(2) The above provision shall apply mutatis mutandis to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items which we provide to the Seller for production. Such items shall – as long as they are not processed – be stored separately at the Seller’s expense and insured to a reasonable extent against destruction and loss.

(3) Any processing, mixing or combination (further processing) by the Seller of items provided by us shall be carried out for us. The same shall apply in the event of further processing of the Goods provided by us, so that we shall be deemed to be the manufacturer and shall acquire ownership of the product at the latest upon further processing in accordance with the statutory provisions.

(4) The transfer of ownership of the Goods to us shall be unconditional and without regard to the payment of the price. However, if in individual cases we accept an offer of the Seller to transfer ownership conditional on payment of the purchase price, the Seller’s retention of title shall expire at the latest upon payment of the purchase price for the Goods delivered; we shall remain authorised to resell the Goods in the ordinary course of business even before payment of the purchase price with advance assignment of the claim arising therefrom (simple reservation of title extended to the resale). This excludes all other forms of retention of title, in particular the extended retention of title, the passed-on retention of title and the retention of title extended to further processing.

§ 7 Defective Delivery

(1) The statutory provisions and, exclusively in our favour, the following additional provisions and clarifications shall apply to our rights in the event of defects in material and defects in title of the Goods (including wrong and short delivery as well as improper assembly/installation or defective instructions) and in the event of other breaches of duty by the Seller.

(2) In accordance with the statutory provisions, the Seller shall be liable in particular for ensuring that the Goods have the agreed quality when the risk passes to us. In any case, any product descriptions which, in particular through designation or reference in our order, were agreed as part of the respective contract or were included in the contract in the same way as these Purchase Terms, shall be deemed to constitute agreements on quality irrespective of whether such product descriptions originate from us, from the Seller or from the manufacturer.

(3) In the case of Goods with digital elements or other digital content, the Seller shall owe the provision and updating of the digital content in any case to the extent that this results from a quality agreement pursuant to para. 2 above or other product descriptions made by the manufacturer or on its behalf, in particular on the Internet, in advertising or on the Goods’ label.

(4) We are not obliged to inspect the Goods or make special enquiries about any defects upon conclusion of the contract. In partial deviation from Section 442 (1) sentence 2 BGB, we are therefore also entitled without restriction to claims for defects if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence.

(5) The statutory provisions (Sections 377, 381 HGB (German Commercial Code)) shall apply to the commercial duty to inspect and give notice of defects, subject to the following proviso: Our duty to inspect shall be limited to defects which become apparent during our incoming goods inspection, which consists of an external visual examination of the Goods and the delivery documents (e.g. transport damage, wrong and short delivery), or which are recognisable through the random sample checks that are part of our quality control procedure. If acceptance has been agreed, there shall be no obligation to inspect. Otherwise, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later remains unaffected. Notwithstanding our duty to examine, our complaint (notice of defect) shall be deemed to have been made without delay and in good time if it is sent within 8 working days of discovery or, in the case of obvious defects, of delivery.

(6) Subsequent performance shall also include the removal of the defective Goods and their re-installation, provided that the Goods were installed in another item or attached to another item in accordance with their type and intended use before the defect became apparent; our statutory claim to reimbursement of corresponding expenses (removal and installation costs) shall remain unaffected. The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, shall be borne by the Seller even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request to remedy a defect shall remain unaffected; in this respect, however, we shall only be liable if we recognised or were grossly negligent in not recognising that there was no defect.

(7) Notwithstanding our statutory rights and the provisions in para. 5 above, the following shall apply: If the Seller fails to fulfil its obligation of subsequent performance – at our discretion by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery) – within a reasonable period of time set by us, we may remedy the defect ourselves and demand reimbursement of the expenses required for this from the Seller or a corresponding advance payment. If the subsequent performance by the Seller has failed or is unreasonable for us (e.g. due to particular urgency, risk to operational safety or imminent occurrence of disproportionate damage), no deadline need be set; we shall inform the Seller of such circumstances without delay, if possible in advance.

(8) Otherwise, in the event of a defect in material or a defect in title, we shall be entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provisions. In addition, we shall be entitled to claim damages and reimbursement of expenses in accordance with the statutory provisions.

§ 8 Supplier Recourse

(1) We shall be entitled to our legally determined claims for expenses and recourse within a supply chain (supplier recourse pursuant to Sections 478, 445a, 445b or Sections 445c, 327 (5), 327u BGB) without restriction in addition to the claims for defects. In particular, we are entitled to demand exactly the type of subsequent performance (repair or replacement) from the Seller that we owe our customer in the individual case; in the case of Goods with digital elements or other digital content, this also applies with regard to the provision of necessary updates. Our statutory right of choice (Section 439 (1) BGB) shall not be restricted hereby.

(2) Before we acknowledge or fulfil a claim for defects asserted by our customer (including reimbursement of expenses pursuant to Sections 445a (1), 439 (2), (3), (6) sentence 2, 475 (4) BGB), we shall notify the Seller and request a written statement, briefly explaining the facts. If a substantiated statement is not made within a reasonable period of time and no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, the Seller shall be obliged to prove the contrary.

(3) Our claims from supplier recourse shall also apply if the defective Goods have been combined with another product or processed in any other way by us, our customer or a third party, e.g. by installation, attachment or installation.

§ 9 Producer Liability

(1) If the Seller is responsible for product damage, it shall indemnify us against third-party claims to the extent that the cause lies within its sphere of control and organisation and it is itself liable in relation to third parties.

(2) Within the scope of its indemnification obligation, the Seller shall reimburse expenses pursuant to Sections 683, 670 BGB arising from or in connection with a claim by third parties including recall actions carried out by us. We shall inform the Seller about the content and scope of recall measures – insofar as this is possible and reasonable – and give the Seller the opportunity to comment. Further legal claims remain unaffected.

(3) The Seller shall take out and maintain product liability insurance with a lump sum coverage of at least EUR 10 million per personal injury/property damage. Upon our request, the Seller shall provide proof of such coverage by means of a current insurance confirmation.

§ 10 Limitation

(1) The mutual claims of the contracting parties shall become time-barred in accordance with the statutory provisions, unless otherwise stipulated below.

(2) Notwithstanding Section 438 (1) No. 3 BGB, the general limitation period for claims for defects shall be 3 years from the transfer of risk. Insofar as an acceptance procedure has been agreed, the limitation period shall begin with acceptance. The 3-year limitation period shall also apply accordingly to claims arising from defects in title, whereby the statutory limitation period for claims in rem of third parties for surrender of goods (Section 438 (1) No. 1 BGB) shall remain unaffected; claims arising from defects in title shall furthermore not become time-barred in any case as long as the third party can still assert its right – in particular in the absence of a limitation period – against us.

(3) The limitation periods of the law on sales including the above extension shall apply – to the extent possible by law – to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (Sections 195, 199 of the German Civil Code) shall apply, unless the application of the limitation periods of sales law leads to a longer limitation period in individual cases.

§ 11 Applicable Law and Jurisdiction

(1) These Purchase Terms and the contractual relationship between us and the Seller shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

(2) If the Seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising from the contractual relationship shall be Siegburg, Germany. However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these Purchase Terms or a prior individual agreement or at the general place of jurisdiction of the Seller. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.