General Terms and Conditions

I. Scope of Application

1. The General Terms and Conditions hereinafter set forth shall apply to all contracts for goods sold and services rendered by TRUMPF unless they concern construction services.

2. These General Terms and Conditions as amended from time to time shall also apply to future business dealings even if in a particular case they have not been transmitted or otherwise delivered to the ordering party. In case of any amendments to these General Terms and Conditions, TRUMPF shall inform the ordering party of any such amendments.

3. So far as required for the ordering and provision of supplies and services, the German Standard Contracting Rules for Supplies and Services [Verdingungsordnung für Leistungen (VOL)] as amended from time to time shall apply. Contracts for construction services shall be governed by the German Contracting Rules for the Award of Construction Performance Contracts, Part B [Verdingungsordnung für Bauleistungen (VOB/B)] as amended from time to time. The scope of application hereof shall additionally be governed by the provisions of sections II., III., VII. No. 5, and IX. to XII. of these General Terms and Conditions.

II. Purchaser’s General Terms and Conditions

The contract shall be governed exclusively by these General Terms and Conditions. Any General Terms and Conditions of the Purchaser shall not become applicable to the contract even if TRUMPF does not expressly object to them. Consequently, any variations from these General Terms and Conditions shall be of no effect unless they have been agreed to in writing by TRUMPF.

III. Payment

1. Unless otherwise agreed on between the Purchaser and TRUMPF, invoices shall be paid without any discount within 14 days following receipt of the invoice. In the event of failure to pay by the due date, TRUMPF shall charge past-due interest in the amount of 5% above the then current basic interest rate.

2. All payment charges shall be borne by the Purchaser.

3. Cheques, bills of exchange and other means of payment shall be accepted only conditionally on account of performance. In case of payment with such means of payment, payment shall be deemed to have been received as of the date on which the funds from such means of payment have become available to TRUMPF.

4. Any setoff with a counterclaim shall be permitted only if such counterclaim is undisputed by TRUMPF or has been confirmed by a non-appealable court decision.

IV. Shipment and Passing of Risk

1. TRUMPF delivers ex works; packaging is charged separately.

2. Purchaser shall be responsible for obtaining insurance coverage against theft, breakage, transport, fire and water damage, as well as other insurable risks.

3. The risk shall pass to the Purchaser upon dispatch of a shipment. This shall apply even in the case of partial shipments, and/or even if TRUMPF has assumed additional obligations such as freight or shipping charges, or direct delivery and installation.

4. If dispatch or shipment is delayed due to circumstances for which the Purchaser is responsible, the risk shall pass to the Purchaser as of the date of notification of readiness for dispatch.

V. Delivery Period

1. The period for delivery and performance starts upon dispatch of the acknowledgement and acceptance of the order by TRUMPF, but not before, if necessary, all technical details of the contract have been fully cleared up and agreed upon, all documentation, permits, approvals, clearances etc. to be supplied by the Purchaser have been provided, and only after any agreed upon down payment has been received. Compliance with the delivery period or schedule shall be contingent upon performance of the Purchaser’s contractual obligations.

2. The delivery deadline shall be deemed to have been met if, unless otherwise agreed on, the goods to be delivered have left our plant by the expiry of such deadline.

3. In case the Purchaser does not immediately call off goods after he has been advised of their readiness for shipment, such goods shall be invoiced to him after one month following such notice of readiness for dispatch, and the expense incurred for storage shall be billed to him at a flat-rate equal to ½ percent of the invoice amount for each month thereafter. Furthermore in that case TRUMPF shall have the right, after the setting and fruitless expiry of a reasonable extension of time, to dispose otherwise of the good(s) to be delivered and then to supply the Purchaser after a reasonably extended period of time.

VI. Retention of Title

1. TRUMPF shall retain title to the delivered goods until all sums due or to become due to TRUMPF in respect of the business relationship with the Purchaser have been fully paid. Where a current account is maintained, the retained title shall secure TRUMPF’s credit balance at any given time.

2. Under TRUMPF’s retention of title, the Purchaser shall have the right to resell the delivered goods to third parties only in the ordinary course of its business and only if the Purchaser reserves title to the delivered goods vis-à-vis any such third party until the goods have been paid in full by such third party. Apart from that, Purchaser shall not be entitled to transfer ownership of the goods or to put them in pledge. The Purchaser shall furthermore have the right to process the goods in the ordinary course of its business. Any processing by the Purchaser of the goods subject to retention of title shall always be carried out on behalf of TRUMPF, i.e. legally TRUMPF shall be deemed to be the manufacturer within the meaning of § 950 German Civil Code [BGB]. If the goods supplied subject to retention of title are processed or combined with goods not belonging to TRUMPF to such extent that they become an integral part of a unified object, TRUMPF shall acquire (co-)ownership of the new object in the proportion of the invoice value of the goods supplied subject to retention of title to the acquisition and manufacturing costs of the combined object.

3. Under TRUMPF’s retention of title, Purchaser shall forthwith assign to TRUMPF its claims from any resale or from the processing of the delivered goods, in the amount of the purchase price of the goods, as security for all present and future claims of TRUMPF arising from the business relationship. TRUMPF hereby accepts such assignment. The Purchaser shall be authorised to collect the assigned claim even after the assignment. TRUMPF shall have the right to revoke this collection authority if Purchaser does not properly comply with its obligations under the contract with TRUMPF.

4. TRUMPF agrees to release, at Purchaser’s request, any security or collateral provided pursuant to the preceding provisions to the extent the realisable value thereof exceeds 110% of the claim to be secured.

VII. Warranty of Quality of New Goods Delivered

1. The purchaser’s warranty rights are determined by the applicable provisions of the law of the Federal Republic of Germany, except insofar as otherwise provided in the provisions hereafter.

2. The purchaser shall have no warranty claims if any deviations as to quality of the good delivered from the quality agreed on in the contract are only insignificant.

3. In the case of any defect as to quality, the purchaser shall be primarily entitled to supplementary performance by TRUMPF. Such supplementary performance shall, at the discretion of TRUMPF, consist in either rectification of any defect or substitute delivery. If TRUMPF decides to rectify the defect, the purchaser shall enable TRUMPF to carry out any rectification work for the purpose of fulfilling the warranty and shall upon request send the delivered good to TRUMPF or to a repair shop to be designated by TRUMPF. The expenses incurred shall be refunded to the Purchaser. If the Purchaser fails to comply with this obligation, TRUMPF shall be released from any and all warranty obligations. TRUMPF shall bear the expenses incurred for the purpose of rectification, in particular transport, travel and labour cost. This shall not apply where such expenses have been increased by the fact that the item was subsequently transported to a location other than the premises or the place of business of the Purchaser, unless the goods were supplied to such location in line with their intended use.

4. If such supplementary performance is unsuccessful or is delayed for reasons for which TRUMPF is responsible, the purchaser may, at its discretion, demand reduction of the purchase price or rescission of the contract according to the applicable provisions of the law. Prior to a successful rectification of defects as to quality, TRUMPF shall have the right to notify the Purchaser that no rectification shall take place, so that the only remedies left to the Purchaser are claim for reduction of the purchase price or rescission of the contract according to the applicable provisions of the law. The Purchaser may demand compensation in lieu of performance because of failure to perform or failure to perform properly in respect of a defect as to quality only in the second place, i.e. only after definite failure of the supplementary performance, or after TRUMPF has declared that no rectification shall take place, and only subject to the additional prerequisites according to the provisions of section IX hereinafter.

5. The period of limitation for claims of the Purchaser based on defects as to quality is twelve months after delivery. § 438 par. 1 No. 1 German Civil Code [BGB] is not affected.

6. TRUMPF shall not be liable for any damage resulting from non-compliance with the instructions for assembly and installation and the operating instructions, from unsuitable or improper storage and/or use of the goods, from faulty assembly and installation or from faulty commissioning by the Purchaser or third parties, from normal wear and tear, or from faulty or negligent handling by the Purchaser, nor for any damage caused by unsuitable components or parts or replacement materials, chemical, electrochemical, electrical, atmospheric and other not foreseeable influences, provided that any such damage is not predominantly attributable to any fault on the side of TRUMPF.

VIII. Warranty of Quality of Used Goods

TRUMPF does not make warranty for defects as to quality of any used items delivered. The provisions of section IX shall remain unaffected.

IX. Liability for Damages

TRUMPF shall be liable to the Purchaser for damages in lieu of or in addition to performance only provided that TRUMPF is culpable of intent or gross negligence. TRUMPF shall be liable for slight negligence only if the damage results from the breach of a major obligation (cardinal obligation) or another essential obligation, or on account of loss of life, physical injury or impairment of health. Otherwise TRUMPF shall not be liable for slight negligence. In case TRUMPF shall be liable for slight negligence on account of culpable breach of a major obligation (cardinal obligation) or another essential obligation, the compensation shall be limited to compensation for the foreseeable, typically occurring damage. The preceding shall apply, mutatis mutandis, to compensation for wasted expenditure in lieu of performance and for non-contractual claims for damages.

X. Copyright

TRUMPF reserves all proprietary rights and copyrights to and in any and all documents provided to the Purchaser, including but not limited to, cost estimates, drawings, and technical documentation. Such documents may not be made available to any third parties without TRUMPF’s consent.

XI. Place of Performance and Place of Jurisdiction

In business dealings with fully qualified merchants, entities under public law or endowed with special funds under public law, the place of performance for Purchaser’s obligation to make payments shall be the principal place of business of TRUMPF.

XII. Governing Law

The governing law shall be that of the Federal Republic of Germany. Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.

TRUMPF Medizin Systeme GmbH
Carl-Zeiss-Straße 5
07318 Saalfeld

TRUMPF Medizin Systeme GmbH + Co. KG
Benzstraße 26
82178 Puchheim

As of: July 2007