Kontron Technology A/S Dr. Neergaards Vej 5D, DK-2970 Hørsholm, Denmark

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1 Dr. Neergaards Vej 5D, DK-2970 Hørsholm, Denmark General Terms and Conditions of Purchase Rev. 1, June 2009 Preamble The following terms and conditions shall apply to contractual relationships between suppliers/contractors (the "Supplier") and the buyer/principal ( ("KONTRON")); they shall also apply to additional supplies and contracts for services. These terms and conditions shall apply to commercial entities, but not to consumers. KONTRON will not accept conflicting conditions of the Supplier, notwithstanding that KONTRON may not have objected expressly to such conflicting conditions nor that KONTRON may have made reference to communications from the Suppler in which the Supplier refers to the Supplier's conditions. These terms and conditions of purchase shall also apply to business concluded with the Supplier in the future, notwithstanding that these terms and conditions of purchase might not be expressly incorporated into the future contract again. Special conditions given on the order add to and may depart from these terms and conditions; in case of contradiction, these special conditions prevail over these terms and conditions. Part A of these terms and conditions deals with general provisions regarding the business to be transacted; part B contains provisions relating to quality control. Part A General provisions 1) Conclusion and conditions of the contract a. The contract shall be concluded by means of a written order and confirmation of the order (by the Supplier). Amendments or additions to the contract shall be made in writing in order to be valid. b. The Supplier shall acknowledge receipt of the order in writing, at the latest eight (8) calendar days following the issue date, failing which the order shall be deemed fully accepted. The acceptance of the order or any start of execution means the Supplier fully adheres to these terms and conditions and any order clauses and conditions. Should the Supplier express reservations these shall, to be valid, be set out in a letter stating the reasons, apart from the Supplier s standard acknowledgement form, and be accepted by KONTRON in writing. c. Orders placed by KONTRON are subject to change, unless retention periods have been agreed. d. KONTRON may, within reason, require changes to be made to its order with regard to design, implementation or delivery times provided the Supplier has not yet performed its contractual duties. The parties shall come to a reasonable amicable agreement in respect of the effects of any such change, e.g. increased or reduced costs and delivery dates. e. In the case of work deliveries the Supplier may not commission subcontractors to carry out the principal service unless KONTRON has given its consent.

2 f. Changes to the subject matter of the supply being made, in particular with regard to technical enhancements ("revisions"), shall not be permitted unless prior notice thereof is given by the Supplier and KONTRON gives its consent thereto. 2) Delivery dates/penalties a. Time is of the essence with regard to all dates agreed. In general the decisive time shall be the time at which the contractual subject matter and all accompanying documentation is handed over to KONTRON at the place of receipt designated by KONTRON. When relevant the decisive time shall be the time of acceptance by KONTRON; this is for deliveries like, but not excluding others, development services, supplementary services that include the installation or assembly of a product and sample products. b. If the agreed delivery deadline is exceeded, a penalty of 0.2% of the value of the delivery (net excluding value added tax) will be payable to KONTRON for every working day by which the delivery is delayed, up to a maximum of 5% of the value of the delivery. KONTRON reserves the right to claim for damages over and above this amount on production of evidence to this effect; in this instance the contractual penalty as a minimum amount of damages will be set off against the amount of damages claimed. Contractual penalties may be enforced up until such a time as final payment is made. 3) Delivery/Passing of risk/packaging a. Unless otherwise agreed, delivery shall be made "duty paid" to the location designated in the order (INCOTERMS DDP). b. In addition to INCOTERM DDP the parties hereby agree that risk shall pass to KONTRON at the time when the unloaded delivery is received and acknowledged by KONTRON. c. Partial delivery is not permitted, unless expressly agreed otherwise. In this case KONTRON will be entitled to cancel the remaining delivery. d. The Supplier shall duly package the goods. Differing items (item numbers) shall be packaged separately and shall be labelled sufficiently on the packaging. The Supplier shall take back all packaging material free of charge if requested to do so by KONTRON so that it can be used again or disposed of. e. Goods shall not be delivered as mixed batches (particularly as regards their manufacturer, date code and product revisions). f. Each delivery shall include a delivery note with details of the contents as well as the complete order number. Each carton/pallet should have its own delivery note. It is not allowed to share the same delivery note between 2 or more cartons/pallets. Each delivery note shall be in two copies, with the first being attached to the supplies, in an envelope stuck to the exterior of the packing and the second sent by mail to consignee s location. The note shall state KONTRON order number, KONTRON part numbers (p/n), the description of the supplies, manufacturer name, and manufacture part number, the marking, the delivery quantities and the name of the carrier. European Union suppliers shall also state the code of the Combined Nomenclature, the net and gross weight and the origin of the supplies. Should the delivery note be omitted or incomplete, the payment process shall be delayed. Furthermore the certificates and reports of the inspections carried out by the Supplier according to the quality control provisions shall be sent along with each copy. The Supplier shall bear the extra charges and penalties from any discrepancies found by Kontron as to the type and/or quantity of the supplies and the information stated on the delivery note or invoice. Notice of dispatch shall be provided immediately with the same information. g. The Supplier shall label the contractual goods in the manner as prescribed by KONTRON, and shall as required issue manufacturer certificates or conformity certificates containing the relevant CE-descriptions. The Supplier s obligation to label the contractual goods must at least state the manufacturer and the date code. Particularly in the event of any product revision the Supplier must explicitly label the fact that a non-mixed delivery is produced. 4) Acceptance and notification of defects a. If by way of a supplementary service the order includes the installation or assembly of a product then such installation or assembly must be formally accepted. Acceptance cannot take place until a phase of testing has been carried out. b. Payment by KONTRON does not signify acceptance by KONTRON of the contractual goods. Acceptance of the goods, a prototype or a sample does not automatically relieve the Supplier from liability for defects. 2

3 c. KONTRON is not under a duty to inspect or give notice of defects in respect of obvious defects. As a minimum KONTRON has the right to inspect that the goods accord with the delivery note and to check for damage caused in transport; the Supplier is obliged to carry out a final inspection of the goods and as such the Supplier shall enter into a quality control agreement with KONTRON (see Part B). In the event of there being obvious defects then a notice of defects shall be deemed to have been given on time to the Supplier if given within 7 working days (excluding Saturdays) from the date on which the goods are received, or in the case of latent defects from the date on which the defect is discovered. 5) Payment/Assignment a. Unless otherwise agreed payment shall be made within 90 days net days from the date on which the contractual goods are received in accordance with the contract and the duly issued auditable invoice has been received by KONTRON s accounting department. The Supplier shall grant a discount of i. 2 % if payment is made within 30 days ii. 3% if payment is made within 14 days b. Payment shall be made by bank transfer or cheque. c. Invoices shall contain the order number and the number of each individual item. Insofar as any such details are omitted, invoices shall not be payable. Copies of invoices shall be marked as duplicates. d. Payment does not constitute an acknowledgement that the corresponding delivery or services were provided in accordance with the Contract. e. The Supplier may not assign any claims it may have as a result of this contract to any third party in full or in part without the prior consent of KONTRON. 6) Manufacturing documentation/manufacturing devices a. Manufacturing devices such as plans, source codes, theories, matrices, models, samples, tools, drawings and the like shall remain the property of KONTRON and shall when requested be returned to KONTRON by the Supplier. b. Any manufacturing devices provided to the Supplier by KONTRON or produced by the Supplier in accordance with KONTRON s instructions may not be duplicated, sold, charged, pledged or transferred in any other manner without KONTRON s expressly written consent, nor used in any manner for any third party. The same applies to any contractual goods manufactured with the help of any such manufacturing devices. 7) Liability for defects a. The service shall be provided in accordance with the provisions of the contract and in line with the most up to date technical status quo, as well as in accordance with the relevant applicable environmental and occupational safety and accident prevention regulations and any additional knowledge of the Supplier. In addition, the Supplier is responsible for ensuring that the contractual goods accord with EU legal requirements and that they do not have any other defects like, but not limited to, components failure, assembly errors, soldering errors, handling and cosmetic errors, marking errors, shipment damages. b. In the event of any defect KONTRON shall have a right to assert any claims to which it is entitled by law (notably subsequent performance, rescission, a reduction in the purchase price and a claim for damages).in the event of any defect KONTRON shall, in particular, be entitled to require that the defect be remedied or that defect-free goods be delivered (subsequent performance); any costs incurred in this respect shall be borne by the Supplier. In urgent cases (risk caused by delay or particular urgency) In the case defective goods have been returned to the Supplier, the Supplier can either replace or repair the defective goods within 14 days from receipt. In any case of repair or replacement the Supplier HAS to provide a failure report for the defective products to KONTRON. c. KONTRON may remedy the defect itself at the cost of the Supplier. A case will be considered to be urgent if it is no longer possible to notify the Supplier and to set a new (albeit short) deadline for subsequent performance. d. The limitation period shall be 3 years from the date of delivery, provided the law does not stipulate a longer period. Should new goods be delivered within the scope of subsequent performance then the limitation liability period shall recommence provided it is considered to be an acknowledgement of the Supplier s duty to provide subsequent performance. The 3

4 same shall apply in the case of subsequent performance in respect of that part of the contractual service that has been subsequently performed. e. The Supplier shall at its own expense arrange a sufficient level of third party insurance cover for damage caused by the Supplier, its personnel and/or subcontractors, proof of which shall be provided to KONTRON when required. In addition, the Supplier shall at its own expense arrange a sufficient level of transport insurance. 8) Legal regress a. In the event of any claim for manufacturer s liability, product liability or any other type of liability being made against KONTRON in respect of any defect in any of the goods delivered by the Supplier, the Supplier shall indemnify KONTRON in respect of any liability arising from the defect insofar as such defect is the responsibility of the Supplier. The indemnity shall be provided when first demanded. b. In this context the Supplier is also under a duty to reimburse expenses in accordance with Danish Law and legal practice incurred in respect of or in connection with a product recall. KONTRON will notify the Supplier without delay within the limits of reasonableness and possibility of the content and scope of any such recall. KONTRON reserves the right to assert any other statutory rights it may have. c. If any other type of claim is made against KONTRON in respect of any defect in any of the goods delivered by the Supplier, KONTRON shall have a right to assert in full its rights to legal regress according to Danish Law and legal practice the only exception being that KONTRON has previously been granted compensation of an equal value in respect of its right to legal regress. 9) Industrial property rights a. The Supplier warrants that no third party rights have been violated in connection with the delivery. b. Should a claim be made against KONTRON in this respect then the Supplier is obliged to indemnify KONTRON against such claims. The indemnity shall be provided when first demanded. KONTRON may not come to any arrangement (notably settlement) with any such third party without the consent of the Supplier. c. The Supplier s duty to indemnify KONTRON shall also apply in respect of any expenses necessarily incurred in respect of or in connection with any such third party claim. d. The limitation period for claims of this nature shall be 3 years from the date of delivery, provided the law does not stipulate a longer period. e. This shall not affect any other statutory rights. 10) Confidentiality a. All design drawings, plans, written documents, models, electronic data carriers, drawings and similar business documentation shall remain the property of KONTRON and shall be used in utmost confidentiality at all times. The same applies to commercial or technical details and business or company secrets. Any such confidential information shall not be made available to third parties without the consent of KONTRON. The Supplier covenants to maintain utmost confidentiality in respect of any other information which shall come to the Supplier s knowledge within the scope of its business with KONTRON. The Supplier shall also ensure that its employees adhere to the provisions on confidentiality. 11) Miscellaneous provisions a. If a provision within these terms and conditions or within any additional agreement that may have been made should be or become invalid, this shall not affect the validity of the remaining provisions of this contract. Within the limits of reasonableness the contractual parties agree to replace the invalid provision with a provision that achieves the commercial purpose of the invalid provision as nearly as possible. b. KONTRON will use all data relating to the Supplier for the sole purpose of transacting the business in accordance with the relevant applicable data protection laws. Insofar as the Supplier has provided personal information to KONTRON the Supplier may at any time object to such information being stored, processed or used in the future. The Supplier has a right to apply in writing for access to any personal information which has been stored, processed or used by KONTRON. Words and provisions importing one gender shall include any other gender and shall in all other respects be non-discriminatory. 4

5 12) Place of performance; Jurisdiction; Applicable law; Contractual language; Burden of proof a. These terms and conditions are subject to the laws of Denmark. The provisions of the UN Convention for the International Sale of Goods (CISG) are excluded from this contract. The contractual language is English. b. The place of performance within its legal meaning is the place of business of KONTRON. c. The competent court of jurisdiction shall be at the place of business of KONTRON, provided the Supplier is a commercial entity, public law entity or public law fund. The same shall apply if the Supplier has not specified a court of jurisdiction within Denmark or the Supplier moves its place of business abroad after the contract has been entered into. d. None of the provisions within these terms and conditions shall be deemed to reverse either the statutory or the case-law burden of proof. 13) Subcontracting to Third Parties a. Subcontracting to third parties shall not take place without the prior written consent of KONTRON and entitles KONTRON to cancel the contract in whole or in part and claim damages. 14) Assignment of Claims a. Any assignment of any claim is only allowed with the prior written approval of the KONTRON. 15) Inability to Pay / Insolvency of the Supplier a. Should the Supplier cease to make payments, or if an interim insolvency administrator is appointed or if insolvency proceedings are commenced in relation to the assets of the Supplier, KONTRON may terminate the contract and/or any purchase orders issued thereunder. In the event of termination KONTRON may continue to utilize existing facilities, deliveries or services already performed by the Supplier in exchange for reasonable payment. 16) Code of Conduct for KONTRON Suppliers a. The Supplier is obliged to comply with the laws of the applicable legal system(s). In particular, the Supplier will not engage, actively or passively, nor directly or indirectly in any form of bribery, in any violation of basic human rights of employees or any child labor. Moreover, the Supplier will take responsibility for the health and safety of its employees, the Supplier will act in accordance with the applicable environmental laws and will use best efforts to promote this Code of Conduct among its suppliers. In addition to other rights and remedies KONTRON may have, KONTRON may terminate the contract and/or any purchase order issued thereunder in case of breach of these obligations by the Supplier. However, provided that Supplier s breach of contract is capable of remedy, KONTRON S right to terminate is subject to the provison that such breach has not been remedied by the Supplier within a reasonable grace period set by KONTRON. 17) Export Control and Foreign Trade Data Regulations a. The Supplier shall comply with all applicable export control, customs and foreign trade regulations ( Foreign Trade Regulations ). Supplier shall advise KONTRON in writing within two weeks of receipt of the order - and in case of any changes without undue delay - of any information and data required by KONTRON to comply with all Foreign Trade Regulations in case of export and import as well as re-export, including without limitation: i. -all applicable export list numbers, including the Export Control Classification Number according to the U.S. Commerce Control List (ECCN); and ii. -the statistical commodity code according to the current commodity classification for foreign trade statistics and the HS (Harmonized System) coding; and iii. the country of origin (non-preferential origin); and upon request of KONRON iv. the Supplier s declaration of preferential origin (in case of European suppliers) or preferential certificates (in case of non-european suppliers). b. Supplier shall be liable for any expenses and/or damage incurred by KONTRON due to any breach of the obligations according to 17.a, unless Supplier is not responsible for such breach. 18) Reservation Clause 5

6 a. KONTRON S obligation to fulfill this agreement is subject to the provison that the fulfillment is not prevented by any impediments arising out of national and international foreign trade and customs requirements or any embargos or other sanctions. Part B Provisions for quality control The following provisions shall apply in respect of quality control, unless special arrangements have been made between KONTRON and the Supplier. Should special arrangements have been made then the following provisions shall apply as supplementary provisions. 19) Quality control system a. The Supplier undertakes to adhere to the quality requirements listed in the order, and as a minimum to adhere to the requirements of DIN ISO 9001:2000 and the environmental management system requirements of DIN EN ISO The Supplier hereby accredits that these are so. b. In this context the Supplier will plan, establish, implement and supervise quality control measures so as to achieve the zero-defect objective. 20) Duty of proof and duty to supply information The Supplier shall be obliged to provide proof and information in the event of any problem with quality and notably in the following instances: a. Manufacturing problems or a fall off in quality that have occurred or are expected to occur (an increase in deviations of the current quality from the intended quality of the goods). b. Corrective or remedial measures for the removal of any such problems (until such measures are effective KONTRON shall be entitled to demand special measures such as a higher frequency of testing, whereby all extra costs incurred shall be borne by the Supplier provided the Supplier is responsible for the problem with quality). c. A presumption on discovering a variation in quality that goods with the same problem with quality have already been delivered. d. Conclusion of or changes to insurance cover in the area of product liability insurance and provision of all relevant documentation. e. Knowledge gained by the Supplier in respect of: technical documentation or descriptions that are defective, unclear or incomplete; product requirements or requirements of the required testing procedures that are defective, unclear or incomplete; properties that deviate from the prototype; or any similar deviations in respect of quality. f. Knowledge gained by the Supplier in respect of procedural methods which are better, more economically advantageous or more effective. 21) Labelling and traceability a. The Supplier shall ensure that goods can be traced from their issue back to their raw material stage. This shall include any prior suppliers. In order to achieve this, goods (or alternatively the goods' packaging) shall be labelled in such a manner as to be able to ascertain the entire product pallet affected in the event of any defect. b. The Supplier undertakes to keep a record of complaints within the meaning of worldwide safety procedures and to permit KONTRON to access these records at any time. In the event of any notifiable facts arising within the meaning of worldwide safety procedures, the Supplier undertakes to notify KONTRON prior to notifying the authorities so as to enable KONTRON to comply with its duty of disclosure to the authorities; the purpose of this is to ensure that KONTRON gains knowledge of a defective product before the authorities or the media do. This duty to supply information in advance shall not apply if this would cause an additional risk to life or limb of any person. 6

7 22) Audits The Supplier shall, if requested in the context of any audit, permit KONTRON or its customers to check that quality control systems have been adhered to within the Supplier's business. For this purpose KONTRON shall be given access to all relevant documentation and processes. 23) Longevity (EOL end of life) The Supplier shall be obliged to provide an advanced notice of any prudent plans of ending the life of a product being or has been purchased by KONTRON. Proof of this notification to KONTRON should be in the form of a signature from the informed KONTRON personal. Records of the EOL acceptance as well as notification should be kept on file for a required period of 7 years. 24) PCN (Product Change Notification) The Supplier shall be obliged to provide an advanced notice of any product changes to the product purchased. Proof of this notification to KONTRON should be in the form of a signature from the informed KONTRON personal. Records of the PCN as well as notification should be kept on file for a required period of 7 years. This should include all other nomenclature for product changes i.e. ECN engineering change notice. 7