I. Scope of Application

1. The General Terms and Conditions ("General Terms") hereinafter set forth shall apply to this Appointed Dealer Agreement with TRUMPF. TRUMPF means TRUMPF Medizin Systeme GmbH, Saalfeld, and TRUMPF Systeme GmbH & Co. KG, Puchheim, both in Germany.

2. The General Terms as amended from time to time shall also apply to future appointed dealer agreements even if in a particular case they have not been transmitted or otherwise delivered to the Appointed Dealer. In case of any amendments to these General Terms, TRUMPF shall inform the Appointed Dealer of any such amendments.

3. The words used in these General Terms shall have the meanings as in §1 Definitions of this Appointed Dealer Agreement, unless the context requires otherwise.

 

II. Purchaser's General Terms and Conditions

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

 

III. Payment

1. Unless otherwise agreed upon between the Appointed Dealer 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 12%.

2. All payment charges shall be borne by the Appointed Dealer.

3. Checks, 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/Export Controls

1. TRUMPF delivers ex works (INCOTERMS 2000); packaging is charged separately.

2. Appointed Dealer 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 Appointed Dealer 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 Appointed Dealer is responsible, the risk shall pass to the Appointed Dealer as of the date of notification of readiness for dispatch.

5. If the delivery of Contractual Products under this Agreement is subject to the granting of an export or import license by a government and/or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, TRUMPF my suspend its obligations and Appointed Dealer's rights regarding such delivery until such license is granted or for the duration of such restriction and/or prohibition, respectively, and TRUMPF ay even terminate this Agreement, without incurring any liability towards Appointed Dealer. Furthermore, if an enduser statement is required, Appointed Dealer shall inform TRUMPF thereof and Appointed Dealer shall provide TRUMPF with such document upon TRUMPF's first written request; if an import license is required, Appointed Dealer shall inform TRUMPF immediately thereof and Appointed Dealer shall provide TRUMPF with such document as soon as it is available. By accepting TRUMPF's offer, entering into any Agreement, and/or accepting any Contractual Products, Appointed Dealer agrees that it will not deal with the Contractual Products and/or documentation related hereto in violation of any applicable export or import control laws and regulations.

 

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 Appointed Dealer 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 Appointed Dealer's contractual obligations.

2. The delivery deadline shall be deemed to have been met if, unless otherwise agreed upon, the goods to be delivered have left the premises of TRUMPF's plant prior to the expiry of such deadline.

3. In case the Appointed Dealer does not immediately call off Contractual Products after it has been advised of their readiness for shipment, such Contractual Products 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 rate of € 15.00 per pallet per month for each month started. Furthermore 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 claim the difference between the price agreed upon with Appointed Dealer and the price by disposal to a third person from Appointed Dealer (positive interest).VI. Retention of Title Not applicable

 

VII. Warranty of Quality of New Contractual Products Delivered  

1. The Appointed Dealer's warranty rights are determined by the applicable provisions of the laws of Switzerland, insofar as otherwise provided in the provisions hereafter with the exception of mandatory provisions.

2. The Appointed Dealer 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 Appointed Dealer shall be primarily entitled to supplementary performance by TRUMPF. Such supplementary performance shall, at the discretion of TRUMPF, consist in either elimination of any defect or substitute delivery. If TRUMPF decides to eliminate the defect, the Appointed Dealer shall enable TRUMPF to carry out any repair work by allowing its technicians full access to the delivered product for the purpose of fulfilling the warranty or shall upon request send the delivered product to TRUMPF or to a repair shop to be designated by TRUMPF. The expenses incurred for transport of the product shall be refunded to the Appointed Dealer. If the Appointed Dealer 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 labor 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 Appointed Dealer, unless the Contractual Products were supplied to such location in line with their intended use.

4. If such supplementary performance is unsuccessful twice or is delayed for reasons for which TRUMPF is responsible, the Appointed Dealer 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 Appointed Dealer that no rectification shall take place, so that the only remedies left to the Appointed Dealer are claim for reduction of the purchase price or rescission of the contract according to the applicable provisions of the law. The Appointed Dealer 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. Any claims for warranty will be time barred after one year.

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 Contractual Products, from  faulty assembly and installation or from faulty commissioning by the Appointed Dealer or third parties, from normal wear and tear, or from faulty or negligent handling by the Appointed Dealer, 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. This waiver does not apply insofar, as mandatory Swiss law decrees otherwise.

 

VIII. Warranty of Quality of Used Contractual Products

TRUMPF does not provide warranty for defects as to quality of any used items delivered. The provisions of section IX shall remain unaffected.IX. Liability for Damages Any liability of TRUMPF for damage claims - irrespective of their legal basis - is excluded. This exclusion of liability does not apply as mandatory Swiss law decrees otherwise.

 

X. Copyright

1. TRUMPF reserves all proprietary rights and copyrights to and in any and all documents provided to the Appointed Dealer, 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.

2. TRUMPF, at its sole expense, shall: (i) defend any legal proceeding brought by a third party against Appointed Dealer to the extent that the proceedings includes a claim that any Contractual Product as furnished by TRUMPF under an Agreement directly infringes the claimant's patent, copyright, trademark, or trade secret; and (ii) hold Appointed Dealer harmless against damages and costs awarded by the final judgment in such proceeding to the extent directly and solely attributable to such infringement.

3. TRUMPF shall have no obligation or liability to Appointed Dealer under subsection 2 of this section X, (a) if TRUMP is not: (i) promptly notified in writing of any such claim; (ii) given the sole right to control and direct the investigation, preparation, defense and settlement of such claim, including the selection of counsel; and (iii) given full reasonable assistance and cooperation by Appointed Dealer in such investigation, preparation, settlement and defense; (b) if the claim is made after a period of three (3) years from the date of delivery of Contractual Product.

4. If any Contractual Product is, or in TRUMPF's opinion is likely to become, the subject of a claim of infringement as referred to under this section X (2) above, TRUMPF shall have the right, without obligation and at its sole option, to: (i) procure for Appointed Dealer the right to continue to use or sell the Contractual Product, (ii) provide replacement product, or (iii) modify the Contractual Product in such a way as to make the modified Contractual Product non-infringing; or (iv) terminate any Agreement to the extent related to such Contractual Product.

5. Subject to the exclusions and limitations set forth under section IX above, the foregoing states TRUMPF's entire liability and obligation to Appointed Dealer and Appointed Dealer's sole remedy with respect to any actual or alleged infringement of an intellectual property rights or any other proprietary rights of any kind.

 

XI. Place of Performance and Place of Jurisdiction, Arbitration

1. In business dealings with fully qualified merchants, entities under public law or endowed with special funds under public law, the place of performance for Appointed Dealer's obligation to make payments shall be Puchheim, Germany. Place of Jurisdiction is Zurich, Switzerland.

2. Any dispute, controversy or claim arising out of or in relation to this Agreement, including the validity, invalidity, breach or termination thereof, shall be settled by arbitration in accordance with the Swiss Rules of international arbitration of the Swiss Chambers of Commerce in force on the date when the Notice of Arbitration is submitted in accordance with these Rules. The number of arbitrators shall be three. The seat of the arbitration shall be in Zurich. The substantive law of Switzerland and the laws of the Swiss Canton "Zürich Stadt", shall apply. The arbitration shall be final and binding upon the Parties. The Parties waive all challenge of the award in accordance to Art. 192 Private International Law Statutes.

3. The arbitral proceedings shall be conducted in the English language. The arbitrators shall be proficient in English with at least ten years professional or academic practice.

 

XII. Governing Law

This Agreement and any amendment hereof and any waiver or consent hereunder and any claims there from resulting shall be governed by and interpreted and construed exclusively in accordance with the substantive domestic Laws of Switzerland with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

 

TRUMPF Medizin Systeme GmbH
Carl-Zeiss-Straße 7-9 
07318 Saalfeld

TRUMPF Medizin Systeme GmbH + Co. KG
Benzstrasse 26
81278 Puchheim

Issued: March 2009