General Terms and Conditions of EM Devices Europe GmbH
§1
1.1

Scope
These terms and conditions shall apply exclusively to all deliveries, services and quotations
from EM Devices Europe GmbH – hereafter referred to as EM DEVICES. Any counterconfirmations of the Customer with reference to his own terms and conditions and/or
conditions of purchase are hereby expressly excluded. Nor shall the latter apply if EM
DEVICES executes contracts unconditionally with knowledge of conflicting terms andconditions of the Customer.

1.2

There are no subsidiary agreements to this contract. All changes to these terms andconditions require written confirmation from EM DEVICES. This also applies to the removalof the above clause.

§2
2.1

Quotation and Conclusion of a Contract
Quotations from EM DEVICES are always subject to change and never binding. Unlessagreed otherwise, prices are net prices ex works, although inclusive of standard EM
DEVICES packaging. These prices, plus the statutory amount of VAT, delivery costs,
customs duties and any additional import charges, shall be paid by the Customer in full.

2.2

Drawings, illustrations, dimensions, weights or other performance figures contained in
catalogues, price lists or other EM DEVICES advertising material only represent aguaranteed condition if this is expressly stated.

§3
3.1

Execution of Deliveries and Services/Acceptance
Unless expressly agreed otherwise, dates and delivery periods are not binding.

3.2

In the event of circumstances at EM DEVICES or at a supplier of EM DEVICES, which
prevent EM DEVICES from supplying a delivery at that time or permanently or underreasonable economic conditions through no fault of EM DEVICES and through no fault of
the supplier attributable to EM DEVICES (e.g. material procurement difficulties, breakdowns,
strikes, lockouts, transport shortages, official orders and all acts of God), EM DEVICES isreleased from the obligation to supply for the duration of the circumstances and theirconsequences. EM DEVICES shall inform the Customer immediately if such circumstances
occur. If the circumstances last longer than three months, the Customer is entitled to rescind
the part of the contract that has not yet been fulfilled at that time following a reasonable
period of grace. EM DEVICES can rescind the contract if the circumstances have produced
an unreasonably large order surplus, or if the economic conditions have changed
considerably in another way.

3.3

If, in the event of circumstances described above, EM DEVICES does not have sufficientquantities of goods to satisfy all Customers, EM DEVICES is entitled to reduce allcommitments to supply at its own discretion, exercising all due care and diligence, and isreleased from obligations to supply.

3.4

EM DEVICES is entitled to deliver and provide services in instalments at all times. EM
DEVICES is entitled to deviate from the agreed delivery or service provided that this isdeemed reasonable and appropriate for the Customer.

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3.5

The Customer must cooperate in the acceptance of goods and services and inform EM
DEVICES of difficult delivery conditions in good time.

3.6

If the dispatch or delivery of goods is delayed due to reasons for which the Customer is
responsible, EM DEVICES is entitled to charge the Customer the costs arising from thestorage of such goods, at least 1% of the imputed invoice amount for storage of goods in EM
DEVICES warehouses, starting from one month after notification that the goods are ready todispatch/deliver and for each month of storage or any part thereof, unless the Customer can
prove that no damage has resulted or damage has not resulted to this extent.

3.7

Even after delivery to the Customer, the packaging remains the property of EM DEVICES.
The Customer is therefore obligated to treat the packaging with care and to comply with
instructions from EM DEVICES in this respect.

§44.1

Passage of Risk
The risk of accidental damage passes to the Customer as soon as the delivery has been
handed to the carrier or has left EM DEVICES storage for the purpose of dispatch or if EM
DEVICES has informed the Customer that goods are ready to dispatch.

4.2

If EM DEVICES follows shipment instructions issued by the Customer, it does so at the riskof the Customer. EM DEVICES only accepts liability under the conditions of § 5 of theseterms and conditions.

4.3

Any agreements regarding transport and insurance costs relate purely to expenses and do
not affect the passage of risk.

4.4

At the request and expense of the Customer, EM DEVICES shall insure the delivery against
damage caused in transit, breakage, fire damage and accidental damage.

4.5

If Incoterms are agreed, the current version of each of these terms is valid.

§55.1

Claims Arising from Faults/Liability
EM DEVICES accepts the liability that the goods to be supplied are free of material defects
or defects in title that render them unsuitable or considerably reduce their suitability. This
does not include defects caused by improper use, incorrect assembly, provided theassembly instructions are correct, unauthorised modification or similar circumstances
occurring within the sphere of the Customer.

5.2

The limitation period for claims arising from defects is one year from delivery of the goods.
This period also applies to claims arising from tort that are based on a defect in the goods. In
the event of liability for the breach of obligations relating to a subsidiary or preliminary
contractual duty, or due to tort that is not based on a defect in the goods, the claims of the
Customer lapse two years after delivery.

5.3

If the Customer is a trader, his claims arising from a defect require the Customer to havefulfilled his obligation to examine the goods and lodge a complaint immediately andappropriately, particularly in the event of incomplete deliveries, as a necessary priorcondition. The Customer shall enable EM DEVICES to examine the goods in a reasonable
and appropriate way.

5.4

Provided that the goods are faulty, EM DEVICES is entitled to choose between rectifying thefault and supplying replacement goods. If EM DEVICES is not prepared or not in a position
to rectify the fault or supply replacement goods, or if EM DEVICES refuses to do so or fails2

to do so within a reasonable time period due to reasons for which EM DEVICES is
responsible, or fails in any other way to rectify the fault or supply replacement goods, theCustomer is entitled to choose between rescinding the contract or demanding an appropriate
reduction in the purchase price.
5.5

If the Customer is entitled to return the goods, they must be returned in accordance with the
instructions provided by EM DEVICES following consultation with EM DEVICES.

5.6

The Customer is not entitled to rescind the contract as a result of faulty goods in cases inwhich the Customer is unable to return the goods received and this is not due to the fact that
it is impossible to return it due to the nature of the goods received, it must be returned due toreasons for which EM DEVICES is responsible or a fault did not become apparent until the
goods were processed or altered. If faulty goods or incomplete deliveries are supplied, theCustomer is only entitled to rescind the entire contract and to damages instead of the entire
fulfilment if an objective measure is applied in order to confirm that he has no interest in thefulfilment rendered.

5.7

Unless specified otherwise in points 5.8 to 5.11 below, the Customer may not make any
claims that go beyond those covered in points 5.1 to 5.6 – irrespective of the legal
justification. This particularly applies to liability for advice, comments and information.
Therefore, EM DEVICES does not accept liability for damages not caused to the goods
themselves and in particular, EM DEVICES does not accept liability for lost profits or othereconomic losses of the Customer.

5.8

The above liability disclaimer does not apply if the cause of the damage is based on intent or
gross negligence on the part of EM DEVICES, its management or persons involved in thefulfilling of the owed obligations in accordance with § 278 German Civil Code. Nor does it
apply if the Customer puts forward claims for damages instead of the entire fulfilment due tothe absence of a condition of the goods guaranteed by EM DEVICES, due to a defectmaliciously kept quiet by EM DEVICES or due to loss of life, personal injury or damage tohealth.

5.9

If EM DEVICES has culpably breached an important contractual obligation or a “cardinalobligation” and in cases of initial impossibility of which EM DEVICES was aware or shouldhave been aware on entering into the contract, the above liability disclaimer does not apply.
In this case, the liability of EM DEVICES is limited to the damage typical of the contract;otherwise, EM DEVICES is not liable in accordance with point 5.7.

5.10 The above liability disclaimer also does not apply to claims arising from the product liability
law. If the clause limiting liability in point 5.9 does not apply, the liability of EM DEVICES inrespect of claims arising from product liability in accordance with § 823 of the BGB (German
Civil Code) is limited to the indemnification of the insurance. If the insurance does not coveror does not fully cover, EM DEVICES is obligated to accept liability up to the amount insured.
5.11 If the above exceptions to the limitation of liability (points 5.8 to 5.10) apply, unlike point 5.2,
the statutory period of limitation applies.
5.12 Claims arising from a defect may only be made against EM DEVICES by the Customer andare not transferable.
5.13 If EM DEVICES is not liable or has limited liability, this also applies to the personal liability of
its employees, co-workers, representatives and persons involved in fulfilling an obligation.

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§6
6.1

Product Liability
If the Customer sells the supplied goods or products that were manufactured using thegoods, the sales should be documented so that his customers can be traced. The Customer
is obligated to place his customers under a corresponding obligation provided that the latterare able to keep documentation and it is reasonable and appropriate to do so.

6.2

The Customer shall support EM DEVICES in every way in the defence of claims relating to
product liability if this is deemed reasonable and appropriate. In particular, on request, heshall provide EM DEVICES with the required information about the type and nature ofprocessing to which EM DEVICES goods have been subjected and the proportion of goods
supplied by EM DEVICES in the product manufactured by the Customer.

6.3

The Customer shall inform EM DEVICES immediately about any claims or otherabnormalities in connection with the goods supplied by EM DEVICES.

§7
7.1

Copyright and Industrial Property Rights
Should a claim relating to goods supplied by EM DEVICES be made against the Customer
due to infringement of industrial and intellectual property rights, he shall inform EM
DEVICES immediately and regularly about all matters concerning such a claim and, inparticular, provide EM DEVICES with the necessary information and documentation. He
shall appoint a solicitor or patent lawyer retained by EM DEVICES to manage any disputes.
The Customer remains free to appoint an additional lawyer.

7.2

EM DEVICES is not obligated to check specifications presented by the Customer for the
infringement of industrial property rights.

7.3

EM DEVICES is entitled to destroy customer-specific masks designed for the Customer one
year after the last delivery to the Customer without informing the Customer first.

7.4

Unless agreed otherwise, the Customer has a non-exclusive, non-transferable right to use
customer-specific masks.

§8
8.1

Retention of title
The goods remain the title of EM DEVICES until all claims of EM DEVICES against theCustomer arising from the business relationship, irrespective of the legal justification,
including any claims arising in the future, have been settled (goods subject to reservation ofownership). This also applies if individual or all claims of EM DEVICES have been
incorporated into a current account and the account balance has been settled andacknowledged.

8.2

Goods subject to reservation of ownership may only be mixed, processed or altered, evenwith items that are not the property of EM DEVICES, by order of EM DEVICES with theresult that EM DEVICES acquires ownership of the new item corresponding to thepercentage of goods subject to reservation of ownership in terms of value (invoice value) inthe end product at the time of processing. The Customer is not entitled to make any claims
against EM DEVICES arising from the mixing and storage of goods subject to reservation ofownership for EM DEVICES.

8.3

The Customer may only sell the property of EM DEVICES or use it for another purpose or
obligate himself to do so in the usual course of business under conventional conditions but
also only if he is not in arrears and there are no circumstances as a result of which the sale4

would jeopardize the entitlements of EM DEVICES. However, the Customer hereby transfers
all claims against his customer or the third party arising from the resale, including all
subsidiary rights, to EM DEVICES, irrespective of whether the goods subject to reservationof ownership are processed prior to resale. If the Customer sells goods subject toreservation of ownership after they have been mixed, processed or altered with additional
materials that are not the property of EM DEVICES, part of the claim, corresponding to thepercentage value of the goods subject to reservation of ownership in the end product, istransferred. The Customer also has the authority to collect these claims after the transfer
has taken place; the authority of EM DEVICES to collect the claims itself remains unaffected.
However, EM DEVICES obligates itself not to collect the claims provided the Customer
meets his payment obligations appropriately, is not in arrears and in particular, has not had apetition for insolvency proceedings filed against him or had payments stopped. EM
DEVICES can demand that the Customer disclose transferred claims and the debtors,
provide all details required for collection, hand over the relevant documents and inform the
debtors of the transfer. If the Customer has transferred such rights to a third party, he is notentitled to use the goods subject to reservation of ownership until the third party has
effectively released the rights in favour of EM DEVICES.
8.4

If the value of the collateral furnished for EM DEVICES exceeds the claims of EM DEVICES
by more than 20% taking into account the usual downward valuation adjustment by the bank,
EM DEVICES is obligated to release collateral of its choice in this respect at the request of
the Customer. This should be based on the purchase prices for goods and the nominal value
for claims.

8.5

The Customer is obligated to treat the goods with care. In particular, he is obligated to insure
them against damage caused by fire and water and against theft on a new-for-old basis at
his own expense. Should the goods subject to reservation of ownership be seized or therights of EM DEVICES be jeopardized in any other way, the Customer must inform EM
DEVICES immediately and, in coordination with EM DEVICES, do everything necessary to
avert the risk. If necessary, at the request of EM DEVICES, the Customer must transfer
claims to EM DEVICES if this is a sensible course of action with regard to the protection of
the goods subject to reservation of ownership.

8.6 If the Customer is in arrears with any payment obligation or an obligation arising from point 8,
if insolvency proceedings are commenced over his assets or if his financial circumstances
deteriorate significantly, EM DEVICES is entitled to rescind the contract and take back the
goods subject to reservation of ownership. The Customer shall bear the cost of this.
8.7

If the reservation of ownership is not legally enforceable or not legally enforceable within its
intended scope in the foreign country of destination, on request, the Customer mustcooperate in furnishing the collateral the effect of which comes closest to this reservation ofownership.

§9
9.1

Prices and Payment
The agreed prices may be increased if the agreed delivery period is more than four months
and if and provided that the total production costs (e.g. increase in material costs and labour,
increase in import duties and taxes) have increased. If the price increases by more than 5%,
the Customer can rescind the contract in writing within one week of receipt of the notificationof the price increase.

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9.2

All EM DEVICES invoices are payable in full within 30 days of the invoice date. Unlessagreed otherwise, this or any other agreed payment period does not apply if a delivery would
cause the size of the debt owed to EM DEVICES – payable and not yet payable – to exceed
a credit limit of which the Customer was notified prior to formation of the corresponding
contract. In this case, the amount by which the credit limit has been exceeded is payable
immediately. The rights of EM DEVICES in point 9.5 of these terms and conditions remain
unaffected by the above terms.

9.3

Even if the Customer operates under conflicting terms, EM DEVICES is entitled to offset
payments against older debts first. If costs have already been incurred and interest has
already accrued, EM DEVICES is entitled to offset the payment against costs in the first
instance, then against interest and finally against the principal obligation. In the event of
payment by cheque or bill, payment is not deemed to have been made until the paper
currency has been cashed. The Customer shall bear all costs incurred as a result of
discounting cheques and bills. EM DEVICES does not accept liability for punctual andappropriate presentation, objection and notification.

9.4

If the Customer falls behind with payments, EM DEVICES is entitled to charge interest at a
rate of 8% above the base rate from the relevant date. EM DEVICES reserves the right toassert a further claim arising from delayed payment.

9.5

If the Customer fails to meet his payment obligations after entering into the contract, inparticular if he fails to honour a cheque or stops payments or if EM DEVICES becomesaware of any other circumstances that seriously call into question the creditworthiness of the
Customer after entering into the contract, EM DEVICES is entitled to demand payment of allremaining debt. This also applies if cheques were accepted. Objections from the Customer,
other than those stating that a payment period had been granted, remain unaffected. In thecases described above, EM DEVICES is also entitled to demand prepayment or security
before supplying goods. This entitlement also exists if a delivery would cause the size of thedebt owed to EM DEVICES – payable or not yet payable – to exceed a credit limit of which
the Customer was notified prior to formation of the corresponding contract unless EM
DEVICES should have recognised this before entering into the contract or the Customer
reduces the balance of the debt to such an extent that the credit limit is not reached as aresult of the delivery in question.

9.6

The Customer is not entitled to offset or withhold payment unless the counterclaim has been
deemed indisputable or legally enforceable.

§ 10

Cancellation
Cancellations of orders that have been placed require the approval of EM DEVICES, which
is only given in exceptional cases.

§ 11 Applicable Law, Court of Jurisdiction, Export Restrictions, Customs Clearance
11.1 The law of the Federal Republic of Germany applies to the legal relationships between EM
DEVICES and the Customer without the possibility of recourse to the Conflicts Law or thelaw of 5th July 1989 relating to the UN Convention on Contracts for the International Sale ofGoods (the Vienna CISG agreement).
11.2 Should individual clauses in these terms and conditions be or become invalid according to
the applicable German law or a national law in the Customer’s country of residence, which6cannot be ceded effectively by the above choice of law, the validity of the remaining clauses
remains unaffected. The invalid clause shall be replaced by a clause that comes closest interms of economic sense to the clause that EM DEVICES and the Customer would havewanted.
11.3 For traders, Neuss is the court of jurisdiction for all legal disputes arising directly or indirectlyfrom this contract. EM DEVICES is also entitled to make a claim against the Customer at his
general court of jurisdiction.
11.4 If the supplied goods are subject to German, European and/or North American export
controls, the Customer shall comply with the relevant export control regulations in the eventthat the goods are exported and/or re-exported. If deliveries are exported without payment of
duty at the request of the Customer, the Customer accepts liability for any subsequentcustoms administration claims with respect to EM DEVICES.
§ 12 Obligations under the German Packaging Act (VerpackG)
12.1 According to § 15 Abs. 1 VerpackG we inform you that we take back the used transport
packaging free of charge in order to be reused or recycled. The decision on this is up to you
only you as a customer. If you wish to do so, please contact us to discuss the process.

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