1. General 1.1 The supply of equipment, parts or documentation ("Goods") and the performance of works or services ( Services ) shall be exclusively governed by i) the contract signed by Purchaser and Supplier inclusive of its annexes; or, if there is no signed contract, ii) Supplier s purchase order confirmation; in each case supplemented by these General Conditions of Sale ( GCS ; together Contract ). References to Work shall, where both Goods and Services are supplied, be read as a reference to both the Goods and the Services, and where either Goods or Services are supplied, Work shall be read as a reference to either the Goods or the Services supplied. Any general business terms and conditions or other business terms and conditions of the order party may be only applied in addition to these Terms and Conditions provided that the expression of will on the part of the Supplier aiming at such effect is executed expressly and in writing; in case of discrepancies these GSC shall prevail. For contracting purposes, the electronic form is not recognized as written form. The Customer explicitly confirms that he has read, understood and agreed with the sub-clauses 1.1., 1.9., 1.10, 3.6, 9.3, 9.5., 9.6, 10.6, 10.10., 13. 1.2 Delivery terms used in the Contract shall be interpreted in accordance with INCOTERMS 2010. 1.3 Supplier may subcontract all or parts of the Work or assign the Contract or parts thereof to any company which belongs to Siemens AG s group of companies. Purchaser may assign any or all of its rights under the Contract only with the prior written consent of Supplier. 1.4 Any amendment to the Contract, including to this subclause, shall be valid only if such amendment is in writing with express reference to the Contract and is duly signed by both contracting parties. 1.5 Mistakes, unintended gaps and contradictions in the Contract are to be treated and construed in accordance with the spirit of the Contract on the basis of mutual trust and of the mutual interests of both contracting parties. 1.6 Supplier shall not be obligated to fulfil the Contract if such fulfilment is affected by any impediments arising out of, or in connection with, national or international foreign trade or customs requirements or any embargoes or other sanctions, including, but not limited to, embargoes or other sanctions imposed by the United Nations, the European Union or the United States of America. 1.7 Both contracting parties agree to comply with all applicable anti-corruption and personal data protection laws or regulations in connection with the Contract. Neither party, nor any person or entity acting on its behalf shall commit any illegal or unlawful act in connection with the Contract. In particular, no party shall make any payment or provide anything of value to any person or government entity that would be considered illegal under any law that may apply to either party. 1.8 If a party establishes or alleges a breach of contract or a right to be indemnified pursuant to the Contract, such party shall take all reasonable measures to mitigate any loss or damage otherwise resulting therefrom. 1.9 The contract based on this GCS is concluded in moment of complete deal of both contracting parties only. Any acceptance with deviation is excluded. The provision of 1751/2 of Civil Code is excluded. 1.10 Using of 558/2, 1726, 1740/3, 1744, 1757/2 and 3, 1950, 1995/2 and 2630 of Civil Code is expressly excluded. The customer takes over the risk of change of circumstances according 1764 1766 of Civil Code. 2. Specification, Acceptance 2.1 The Work shall be supplied in accordance with the conditions and the specification set out in the Contract. The Purchaser is responsible for satisfying itself as to the suitability of the Work for the Purchaser s application. 2.2 If the contracting parties have agreed on a formal acceptance, such acceptance shall take place as soon as possible after the delivery of the Goods or completion of the Services. Acceptance may not be withheld for deficiencies which do not impair the proper functioning of the Goods or the equipment upon which the Services were performed (whichever is applicable). Acceptance shall be deemed to have taken place on the earlier of i) the Goods being put into commercial use; or ii) one week after the agreed acceptance date or, if no such date has been agreed, one week after the delivery of the Goods or completion of the Services (unless acceptance is delayed for reasons attributable to Supplier).
2.3 The Contract constitutes the entire agreement between the contracting parties hereto and supersedes all prior negotiations, representations or agreements related to the Contract, whether written or oral. 3. Prices and Terms of Payment 3.1 Prices shall be as defined in the Contract ( Price(s) ). The Prices exclude any indirect tax, including but not limited to property, license, sales, use, value added or similar taxes or duties applicable to the Work. Purchaser agrees to pay or reimburse to Supplier all such taxes, levied on Supplier or its subcontractors. 3.2 If the Services include activities which shall be performed at locations other than Supplier s or its subcontractors premises, Purchaser shall bear all related incidental costs (such as travel expenses, daily allowances, waiting time and trip cancellation charges) in addition to the agreed rates payable for the Services. 3.3 Purchaser shall bear all taxes, fees, duties, social security contributions and other charges which are levied on Supplier or its employees (including Supplier s subcontractors and their employees) in connection with the performance of the Contract in tax jurisdictions which are different to the tax jurisdictions in which Supplier has got permanent establishments at the date of Contract signature. 3.4 Purchaser shall pay to Supplier any sums due within thirty (30) days after the date of issuance of an invoice. 3.5 Payments shall be made to Supplier s bank account without any deduction, including but not limited to deductions of withholding tax (unless Purchaser is required by law to make a payment subject to such deduction). If Purchaser is required by law to make a payment subject to such deduction, the sum payable by Purchaser in respect of which such deduction is required to be made, shall be increased to the extent necessary to ensure that, after the deduction, Supplier receives and retains (free from any liability for such deduction) a net sum equal to the amount it would have received had no such deduction been made. Purchaser shall provide Supplier with tax receipts of withholding tax paid within four (4) weeks after payment of the invoice which was subject to withholding tax. 3.6 If Supplier does not receive payment from Purchaser when due, Supplier shall be entitled to charge interest at the annual rate according to legal regulation. The claim to interest arises without any written notification of Supplier and payment of interest has no effect to other Supplier s claims regarding delay of Purchaser. Beyond interest, Supplier has a claim to damages caused by delayed payment in full amount. 3.7 Purchaser may only deduct from any payment to Supplier any amount which is i) due to Purchaser under the Contract; and ii) which is undisputed or has been finally decided pursuant to Clause 18 (Law and Dispute Resolution). 3.8 The specification, Prices and schedule shall be modified to take into account any (i) reduction or increase in the scope of Work; and (ii) costs and time needed for the performance by Supplier of its contractual obligations as a consequence of changes to any existing laws, orders, regulations, decrees, standards or conventions coming into force either during the period of validity of the tender or during performance of the Contract. 4. Purchaser s General Obligations 4.1 Purchaser shall provide on time any information, documentation, approval, authorisation, licence, instruction, material, civil works, access to site or other thing which may be required in relation to the performance of Supplier s obligations, even if not expressly stated in the Contract to be Purchaser s responsibility. 4.2 Purchaser shall be responsible for obtaining any necessary customs import clearance and shall, at no cost to Supplier, give all reasonable assistance to Supplier in obtaining any work permit, visa and similar document which Supplier may require. 5. Title and Transfer of Risk 5.1 Title shall not pass to Purchaser until Supplier has been paid the Price for such Goods in full if something another is not agreed. All risks of loss or damage to the Goods shall nevertheless continue to pass to Purchaser on delivery and Purchaser shall on request provide evidence that it has adequate insurance cover against such risks. 5.2 Until the passing of Title to the Purchaser, the following shall apply: i) Purchaser shall hold the Goods as bailee for Supplier and clearly identify them as belonging to Supplier; and ii) Purchaser may only use the Goods in accordance with Supplier s directions, may not modify, sell or otherwise remove, dispose or grant to a third party 2
any interest in the Goods and Purchaser shall maintain the Goods in good condition and allow Supplier unrestricted access to them for the purposes of inspection, repairs, protection or removal (including allowing Supplier the right to separate them from any other property, without liability for any resulting damage). 6. Storage If Purchaser does not accept delivery of the Goods on the agreed date or within fourteen (14) days after notification of delivery, whichever is the earlier, Supplier shall be entitled, on behalf of Purchaser, to put the Goods into storage and Purchaser shall pay all costs and expenses due to such storage. Supplier shall be deemed to have delivered such Goods to Purchaser on storage and shall be entitled to payment on presentation of the warehouse receipt in place of any bill of lading or similar document otherwise required under the Contract. Risk of loss or damage to the Goods shall pass to Purchaser on storage but Title shall only pass in accordance with the provisions of Clause 5 (Title and Transfer of Risk). 7. Variations 7.1 If, during the term of the Contract, Purchaser requires any modification (variation) from the Work, Supplier shall provide Purchaser with a written quotation specifying the effect of the variation on the Prices and the times for delivery of the Goods or completion of the Services, the payment and any other relevant provisions of the Contract. The Purchaser is obliged to comment this quotation within 7 days; until his comment/statement Supplier will continue of fulfilment according valid Contract. If Purchaser rejects this quotation or will not comment it within this time-frame, it is deemed that he requires this modification no more. If Purchaser wishes to proceed with the variation, Purchaser shall issue a formal variation order to effect the variation ( Order Change Agreement OCA ) and the Supplier after confirmation from his side and after conclusion of amendment to contract will continue of fulfilment according this variation order. The Prices, the times for delivery of the Goods or completion of the Services, the payment terms and any other relevant provisions of the Contract shall be adjusted as mutually to be agreed between the contracting parties on basis of amendment to contract. 7.2 Supplier is not obliged to carry out any variation order until such variation is mutually agreed as defined in sub-clause 7.1. 8. Quality Management and Testing, Supplied Material 8.1 Supplier s standard quality management procedures and tests shall be performed as defined in the Contract. If it is agreed in concrete case, Supplier prepares inspection and testing plan which will be binding for both contracting parties after approval of Customer and which sets a schedule of checking and inspections of Works executed by Supplier. 8.2 Purchaser shall be given fourteen (14) days prior notice of the tests specified in the Contract which Purchaser is entitled to attend. If Purchaser fails to attend such tests, Supplier may sign the test results on behalf of Purchaser who shall then be deemed to have accepted such test results. If successful test for payments must be met, the Supplier is entitled to invoice such payment after successful test and the Customer is obliged to pay such payment. 8.3 If Purchaser wishes to attend at Supplier s site during the manufacturing of the Goods, such attendance shall only be allowed at a time agreed with and in compliance with the instructions of the Supplier. 8.4 If Purchaser provides materials for incorporation into the Goods or for the performance of the Services, Purchaser shall do so at its own cost and expense. Purchaser shall ensure that all procedures, test results, test equipment and necessary documentation are supplied together with such material. Supplier shall not be liable for defects in any such materials, or for defects in the Work resulting therefrom. If the materials are found to be damaged or not to be in accordance with the Contract, Purchaser shall immediately provide a replacement at no extra cost to Supplier. In such circumstances any direct additional costs incurred by Supplier shall be reimbursed by Purchaser. In the event of delay in delivery of such materials, Supplier may choose to reschedule the times for delivery of the Goods or completion of the Services and store unfinished Goods at Purchaser s cost and invoice for all Goods delivered or Services performed. 9. Delay in Delivery, Failure to Perform 9.1 Supplier s obligation to adhere to the times for delivery of the Goods or completion of the Services or other performance dates is subject to the timely fulfilment of all of Purchaser s obligations in the Contract. To the extent that Purchaser does not fulfil its obligations on time, the times for delivery of the Goods or completion of the Services shall be extended as necessary to overcome the delay and Supplier shall be entitled to an 3
adequate modification of the Prices and other pertinent provisions of the Contract. 9.2 If, by reason of any variation order pursuant to Clause 7 (Variations) or of Force Majeure as set out in Clause 14 (Force Majeure) or of a suspension pursuant to Clause 15 (Suspension) or any other reason not solely attributable to Supplier, the delivery of the Goods or completion of the Services is delayed, the agreed times shall be extended accordingly (including the time necessary for the cessation and resumption of performing the Work). 9.3 If, as a result of its responsibility Supplier is solely responsible for a delay in delivery of the Goods or completion of the Services, and Purchaser can prove that it suffered a loss from such delay, Purchaser may claim liquidated damages of 0,5% of the Price of that part of the Work that is delayed for every completed week of delay. Under no circumstances shall the aggregate liability of Supplier for such delay exceed 5% of the Price of the delayed part of the Work. 9.4 If Supplier is solely responsible for a delay in delivery of the Goods or completion of the Services, Purchaser may terminate the part of the Contract in respect of the delayed or uncompleted part of the Work, provided that i) the aggregate limit of liquidated damages specified in sub-clause 9.3 has been reached; and ii) Supplier has not delivered the Goods or completed the Services within an additional extension of time of 90 days; and iii) Purchaser provides reasonable evidence that Purchaser is substantially deprived of the full benefit of the Work. The provisions of Clause 16 (Termination) shall apply to any termination under sub-clause 9.4. 9.5 If the Goods fail to meet any performance figures agreed in the Contract, then Supplier shall be given additional reasonable time to achieve the performance figures by carrying out at its own expense any work which Supplier considers necessary, including changes or replacement of any Goods or its part. If, after completion of the work and the carrying out of a further performance test, the performance figures are not reached, Purchaser shall be entitled to liquidated damages at such rate as may be specified in the Contract but which shall in no event exceed 5% of the Price of the part of the Goods failing to meet the agreed performance figures. 9.6 Supplier s total liability for failure to meet any times for delivery of the Goods or completion of the Services or agreed performance figures shall in no event exceed 10% of the Price of the whole Contract and the payment of liquidated damages shall be in full and final satisfaction of all claims and liabilities arising out of, or in connection with, a delay or failure to achieve agreed performance figures. 10. Warranty Supplier s warranty obligations for defects in the Work, including any non-conformity with express warranties or assurances, shall be as follows: 10.1 Subject to the following provisions, Supplier shall, at its option, repair any defect in, or perform again, modify or replace any Work or any portion thereof that is defective ( Remedial Work ) or to grant a reasonable discount from Price of the Work. With defects, where the costs for repair obviously do not exceed an amount of 500 EUR, the Supplier will grant to Purchaser a discount appropriate with repair costs. 10.2 Supplier shall only be obliged to perform Remedial Work or to grant a reasonable discount from Price of the Work, in adequate time, only if i) Purchaser proves that it complied with the instructions or recommendations contained in the operation and maintenance manuals, preservation procedures or other documentation of the original equipment manufacturer; and ii) Purchaser has notified Supplier in writing without undue delay after Purchaser s discovery of the defect and Purchaser has allowed Supplier to investigate the defect; and iii) the defect is not due to external circumstances like interference of third person, natural disasters etc. and not due to normal wear and tear; and iv) Purchaser has immediately taken all appropriate steps to mitigate any loss or damage otherwise resulting from the defect; and v) all modifications or repairs to the Goods have been performed by Supplier, unless otherwise agreed in writing by the contracting parties; and vi) the defect was not caused by faulty or negligent handling, excessive strain or other abuse by Purchaser or any third party; and vii) Purchaser does not prevent Supplier from the performance of Remedial Work. 10.3 Supplier shall, under no circumstances, be liable for costs relating to i) dismantling of objects (other than the Goods) to provide access to the Goods; or ii) board and lodging offshore; or iii) transport to, from and at an offshore location; or iv) heavy lift operations offshore; or v) extra costs associated with Remedial Work performed below the water line (including subsea 4
retrieval). 10.4 Supplier shall be paid for Remedial Work in accordance with any Prices agreed with Purchaser or Supplier s standard price lists unless Supplier accepts responsibility for such defect or Purchaser proves that Supplier was responsible. 10.5 Supplier shall be given adequate time and opportunity for Remedial Work. Purchaser shall grant Supplier working access to the relevant Goods and shall dismantle and remove any equipment (whether or not installed by the Supplier) and shall grant reasonable access to operating and maintenance data and the control system without cost to Supplier. 10.6 The warranty period shall be twelve (12) months starting, in the case of Goods, at the date of delivery of the Goods or, in case of Services, upon completion of the Services. The warranty period for remedied parts of the Goods or Services shall be twelve (12) months from the date of completion of the repair or replacement, but shall in no event expire later than six (6) months after expiry of the warranty period for the original Work. The warranty under these GCS replaces rights from defect fulfilment granted by law. 10.7 If a defect in the Work concerns software and Supplier has acquired such software under a license from a third party, Supplier shall only be obliged to notify its licensor of the defect and shall provide Purchaser with an updated version, if available. If the software has been individually developed by Supplier, Supplier shall provide Purchaser with an interim solution until an updated version of the software is available, provided such interim solution is feasible at reasonable expense. 10.8 In any event Supplier s warranty obligations with regard to software shall not apply i) if the software deviates insignificantly from the agreed characteristics; or ii) if the defect cannot be reproduced by Purchaser in the presence of Supplier; or iii) to errors or restrictions of use resulting from improper operation, usage or handling or from modifications, performance of maintenance not approved by Supplier, or from improper interconnection with third party equipment unless performed by Supplier; or v) to defects in freeware, shareware or open source software. 10.9 The warranty period for software shall be ninety (90) days starting at the date of delivery of the Goods or, in case of Services, upon completion of the Services. 10.10 The undertakings and obligations of Supplier under this Clause 10 (Warranty) are in place of and exclude all other warranties and conditions, whether oral, written, statutory, express or implied. Implied warranties or conditions of fitness and merchantability shall not apply in any circumstances. Supplier s liabilities and Purchaser s remedies in respect of defects in the Work and any damage to the Goods resulting therefrom (whether arising out of, or in connection with, a breach of contract or warranty, negligence or otherwise) are solely and exclusively governed by the provisions of this Clause 10 (Warranty). Supplier shall have no liability of any kind for any such defects or damages which appear after expiry of the applicable warranty period(s) as stated in this Clause 10 (Warranty). In case of supply to construction, Supplier s liability as sub-supplier on basis of 2630 of Civil Code is excluded. 11. Ownership and Confidentiality of Information 11.1 Purchaser shall not without Supplier s written consent reproduce, reverse engineer or disclose to any third party any designs, drawings or other technical information, or any other data or information provided to Purchaser by Supplier either orally or in writing (including electronically) ("Information"). 11.2 From the effective date of the Contract Supplier grants to Purchaser a non-exclusive, non-transferable right to use the Information only for purposes of operation and maintenance of the Goods supplied under the Contract. Purchaser may transfer such right to use the Information granted by Supplier together with the sale and transfer of the Goods, provided that Purchaser procures that the respective transferee undertakes to be bound by the obligations and restrictions imposed on Purchaser by the Contract. 11.3 Purchaser agrees to carefully protect Supplier s Information and to restrict access to such Information to employees with a need to know it in their scope of employment. 11.4 If Supplier has consented to the disclosure of Information to a third party by Purchaser, Purchaser shall procure that such third party undertakes in writing to be bound by the confidentiality obligations imposed on Purchaser by the Contract and Purchaser shall indemnify and hold harmless Supplier from any damage incurred through the breach of said confidentiality obligations by the third party. 11.5 The confidentiality obligations in sub-clauses 11.1, 11.2, 11.3 and 11.4 shall not apply to any Information 5
which i) is or becomes part of the public domain through no fault of Purchaser; or ii) is disclosed to Purchaser in good faith by a third party which has a right to make such disclosure; or iii) as evidenced by Purchaser s written records, is or becomes developed independently by Purchaser without reliance on the Information, or was known to the Purchaser prior to its disclosure by Supplier; or iv) must be disclosed by law, except to the extent eligible for special treatment under an appropriate protective order and subject to Purchaser s obligation to notify Supplier of the requirement in a timely manner. 11.6 Supplier reserves all rights, title and interest in all intellectual property rights related to the Information, including but not limited to patents and copyrights. 12. Intellectual Property Right Infringement 12.1 If a third party asserts legitimate claims against Purchaser due to an infringement of an intellectual property right by the Work, Supplier s liability towards Purchaser shall be as follows: Supplier shall, at its own option and expense, either i) obtain a right to use the intellectual property right in connection with the Work; or ii) modify the Work so as not to infringe the intellectual property rights; or iii) replace the relevant Goods. If none of the foregoing is reasonably possible (as determined by Supplier), Supplier shall take back the relevant Goods and refund the Prices received for such Goods. 12.2 Supplier s obligations in sub-clause 12.1 are subject to the following conditions: i) Purchaser has immediately notified Supplier in writing of the claims asserted by the third party; and ii) Purchaser has not acknowledged an infringement and has provided Supplier with authority, information and such assistance in defending or settling such claim as Supplier shall determine is necessary; and iii) Supplier is given sole control of the defence and the sole right to compromise and settle such claims. 12.3 The limitation period for Purchaser s claims for intellectual property infringements shall be twelve (12) months starting at the date of delivery of the Goods or, in case of Services, upon completion of the Services. 12.4 Supplier shall have no obligations under sub-clauses 12.1, 12.2 and 12.3 if Purchaser is responsible for the infringement of intellectual property rights, or if the infringement was caused by i) specific demands of Purchaser; or ii) a use of the Goods not foreseeable by Supplier; or iii) the Goods being altered by Purchaser; or iv) the Goods being used together with products not provided by Supplier. 12.5 This Clause 12 (Intellectual Property Right Infringement) sets forth Supplier s entire liability under all legal theories for infringement of third party intellectual property rights. Purchaser shall have no further rights and remedies in respect of infringement of third party intellectual property rights (including, but not limited to, any right to claim damages). 13. Limitation of Liability 13.1 The contracting parties agreed that only actual damage is to be compensated. The damages are preferably compensated in cash if something another is not agreed. Supplier shall in no event be liable for any i) financial or economic loss, loss of profit or revenue, loss of production (including loss of hydrocarbons), interruption of operations or loss of use, cost of capital, loss of interest, loss of power, cost of purchased or replacement power; or ii) indirect or consequential damages; or iii) loss of information and data; or iv) damages based on Purchaser s third party contracts; whether or not such claim is based on contract or law. The contracting parties agreed that potential contractual penalties or other sanctions to be paid by the supplier to the Customer (if any) shall be fully counted for the above limit for compensation for damage. The limitation stipulated above shall not be applied to compensation for damage caused by wilful misconduct, gross negligence or to the compensation of damages to natural rights of men. 13.2 The contracting parties agreed that the total scope of liability of the Supplier towards the Customer for harm (damage) suffered by the Customer in connection with performance of this contract or a breach of a legal regulation shall be limited up to 100% of the total contractual price under this contract or up to one million euro (1.000.000 EUR), whichever is lower, applicable to all loss events in aggregate. 6
13.3 If the performance under the contract is to be provided for the fulfilment of the Customer for the benefit of a third party and the Customer is not to be the end user or sole user of the supply or its part, the Customer is obliged to ensure that his liability to this third person is limited to the same scope as the scope of liability between the Supplier and the Customer is limited under these Terms and Conditions. Should the Customer and third party for which the fulfilment under the contract is provided fail to appropriately agree such limitation of liability, the Customer will be obliged to compensate the Supplier for any damages in an amount equal to the difference between the compensation of damages really paid by the Supplier to a third party and the damages which would otherwise be paid to the third party if the above mentioned limitation of liability was applicable. 13.4 The exclusions and limitations of liability pursuant to this Clause 13 (Limitation of Liability) shall also apply in favour of Supplier s employees, Supplier s agents, Supplier s subcontractors and their employees. 13.5 In any event Supplier s liabilities under, or in connection with, the Contract shall expire at the end of the warranty period as determined by Clause 10 (Warranty), save for any claims that Purchaser has accrued and made at such point and claims for personal injury and death. 13.6 This Clause 13 (Limitation of Liability) shall not operate to exclude or limit any liability which cannot be excluded or limited under mandatory rules of the applicable law. 14. Force Majeure 14.1 If non-performance of any obligation of Supplier is due to impediments or other circumstances beyond Supplier s reasonable control ( Force Majeure ), then Supplier shall be excused from and shall not be liable for failure in performance of the Contract. 14.2 Force Majeure includes, but is not limited to: acts of God, natural disasters or catastrophic events such as epidemics, nuclear accidents, fire, flood, typhoons or earthquakes, acts or omissions by civil or military government authorities, such as foreign currency restrictions, revocation or suspension of export or import licenses, sanctions, embargoes, act (or failure to act) of governmental authorities (such as non-approval of export license for the Work), governmental priority orders, allocations or restrictions upon the use of materials or manpower, refusal of visas or working permits despite an application in due form, war whether declared or not, riots, ionizing radiation or contamination by radio-activity, piracy, sabotage or revolutions, terrorist acts and the threat thereof, strikes or lockouts, shortages of means of transport like cars, trains, ships, planes etc., fuel or energy shortages, delay or accident in shipping or transportation or destruction of Supplier s manufacturing facilities intended to be used for the performance of the Contract. 14.3 If Supplier wishes to claim relief by reason of Force Majeure, Supplier shall without undue delay submit a written notice to Purchaser specifying the reason for claiming Force Majeure and estimated duration of the Force Majeure situation. 14.4 In cases of Force Majeure Supplier is entitled to i) an adequate modification of the Contract in order to compensate Supplier for increased costs; and ii) an extension of the times for delivery of the Goods or completion of the Services equivalent to the duration of the Force Majeure event plus the time required to overcome the consequences of the Force Majeure event. Supplier may terminate the Contract if in the reasonable opinion of Supplier a continuation is not economically reasonable or Force Majeure has continued for more than one hundred twenty (120) days in the aggregate. Any such termination shall be without liability to Supplier and the provisions of Clause 16 (Termination) shall apply accordingly. 15. Suspension 15.1 If Purchaser fails to perform on time any of its obligations under the Contract (including, but not limited to, failure of payment when an amount is due and payable) or if delivery of the Goods or completion of the Services is prevented by export restrictions, Supplier shall be entitled to suspend performance of the Contract until the reason is overcome. 15.2 The times for delivery of the Goods or completion of the Services shall be extended to allow for any delays incurred as a result of such suspension including the time necessary for the cessation and resumption of performing the Work. 15.3 Any costs (including financial costs and storage, demurrage or other charges) resulting from the suspension and incurred by Supplier shall be paid by Purchaser or reimbursed to Supplier if Supplier has elected to incur any such costs. 7
15.4 If any suspension lasts longer than sixty (60) days Supplier shall be entitled to terminate the Contract with thirty (30) days notice in which case Purchaser shall pay to Supplier the outstanding balance of the Prices for the Work already performed or delivered (or capable of being delivered) and all other items listed in sub-clause 15.3. 16. Termination 16.1 Except in relation to termination pursuant to clause 17, any party proposing to terminate the Contract shall first give the other party written details of any alleged breach and a reasonable time to cure such breach, by payment of liquidated damages or otherwise. 16.2 Subject to sub-clause 16.1, Purchaser may terminate the Contract as provided in, and subject to, sub-clause 9.4, by giving thirty (30) days notice to Supplier. Upon expiry of such notice Purchaser shall pay to Supplier the sums set out in sub-clause 16.4 but subject to any liquidated damages to which the Purchaser is entitled for Supplier s delay in delivery of the Goods or completion of Services as set out in sub-clauses 9.3 and 9.4. 16.3 Subject to sub-clause 16.1, Supplier may terminate the Contract as provided in, and subject to, any Contract clauses providing for a termination right for Supplier, and also for material breach of the Contract by Purchaser, by giving thirty (30) days notice to Purchaser. Upon expiry of such notice Purchaser shall pay to Supplier the sums set out in sub-clause 16.4. 16.4 Upon expiry of any termination notice under subclauses 16.2 or 16.3, or upon termination under clause 17, Purchaser shall within fourteen (14) days from the date of termination pay to Supplier: - the Prices of all Goods and Services (whether or not delivered or performed by Supplier at the date of termination); - less any costs and expenses which would have been incurred by Supplier in further performing the Contract but which, as a result of the termination, were not incurred by Supplier; - plus any costs incurred by Supplier as a result of the termination including without limitation: the cost of materials or goods reasonably ordered; and the amount of any other expenditure reasonably incurred up to the date of receipt of the termination notice by Supplier or the date of sending of the termination notice by Supplier (as applicable) in the expectation of completing the Works. 16.5 Termination of the Contract in whole or in part, however occasioned, shall not affect or prejudice Clauses 3, 6, 11, 12, 13, 16, 18 and 20. 16.6 Purchaser s rights to terminate this contract are exclusively set forth in the contract. 17. Bankruptcy If either party becomes bankrupt or insolvent according to legal regulation regarding insolvency, the other party may, if legally possible, at any time by written notice terminate the Contract forthwith. The provisions of Clause 16 (Termination) shall apply. 18. Law and Dispute Resolution 18.1 The Contract shall be governed by laws of the Czech Republic. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply. 18.2 All disputes arising out of the Contract between Purchaser and Supplier which are not resolved by settlement negotiations shall be finally settled before court having subject-matter and local jurisdiction according seat of Supplier. 19. Health, Safety and Environmental Protection If Supplier s or its subcontractors employees carry out any works at Purchaser s premises ( Work Area ), the following shall apply: 19.1 Purchaser shall comply with all health and safety laws and regulations in force at the Work Area, including without limitation laws and regulations relating to the ambient air of such area, as well as with the health and safety laws, regulations and requirements of the European Union. Purchaser shall ensure that the Work Area complies with all aforementioned laws, regulations and requirements. 19.2 Purchaser shall inform Supplier about possible health and safety risks which exist at the Work Area, including but not limited to hazardous materials. Supplier shall provide reasonable support to Purchaser in the assessment of the existence of any such health and safety risks and what protective and preventive measures should be taken. 19.3 Supplier s obligations do not comprise the use of special protective and preventive measures against any health or safety risks for Supplier s or its subcontractors employees. In case of health and safety risks for which Supplier is not responsible (including but not limited to the exposure to artificial 8
mineral fibers or asbestos concentrations at the Work Area greater than 1,000 particles / m³ of ambient air) ( HSE Risks ) the contracting parties shall reach agreement in good faith how to proceed. However, Supplier shall not be obligated to carry out any works at all if the asbestos concentration exceeds 100,000 particles / m³ ambient air. 19.4 In case of substantiated doubt regarding the existence of HSE Risks Purchaser shall provide proof of their non-existence by means of an expert analysis by an independent, internationally operating, specialized and qualified third party agreed upon by the contracting parties. Supplier is entitled, in its sole discretion, to take any samples or measurements of such areas, though Supplier shall have no obligation to do so. 19.5 Supplier shall be entitled to suspend its works until i) a potential HSE Risk has been permanently eliminated; or ii) in case of any substantiated doubt that such HSE Risk exists, the addressed doubt has been proven to be unsubstantiated; or iii) agreed protective and preventive measures have been taken. The provisions of Clause 15 (Suspension) shall apply. 19.6 Purchaser shall dispose of all waste created at the Work Area in a timely manner and in accordance with all applicable laws. Purchaser shall indemnify and hold Supplier harmless from and against any claims, losses or damages any of Purchaser s or its subcontractors employees or any other third party may demand from Supplier and arising out of the presence of any HSE Risks or the disposal of any waste Purchaser is responsible for. 20. Export Control Regulations 20.1 If Purchaser transfers the Goods or part thereof (hardware software or technology as well as corresponding documentation, regardless of the mode of provision, including all kinds of technical support) delivered or performed by Supplier to a third party worldwide, Purchaser shall comply with all applicable national and international (re-)export control regulations. In any event Purchaser shall comply with the (re-)export control regulations of the Federal Republic of Germany, of the European Union and of the United States of America. 20.2 If required to conduct export control checks, Purchaser shall upon Supplier s request promptly provide Supplier with all information pertaining to a particular end customer, destination and intended use of the Goods as well as information related to any existing export control restrictions. 20.3 Purchaser shall indemnify and hold harmless Supplier from and against any claim, proceeding, action, fine, loss, cost and damages arising out of, or in connection with, any noncompliance with export control regulations by Purchaser, and Purchaser shall compensate Supplier for all resulting losses and expenses, unless such noncompliance was not caused by the fault of Purchaser. 21. Final Provisions 21.1 When or if any provision of the contract or these GCS becomes invalid, unenforceable, virtual or ineffective, this does not affect the validity, enforceability or effectiveness of other provisions of the contract or these GCS. In such a case, the contracting parties are obliged to make every effort to conclude a written amendment to the contract to replace the invalid, unenforceable or ineffective provision by a new provision that will correspond as close as possible to the originally intended economic purpose. Right to claim the cancellation of the obligation according to 2000 of the Civil Code shall be excluded. 21.2. Within the meaning of these GCS a document in writing (written form) shall mean a document executed either (a) in a printed form and sent to the other party to the address of the party specified in the contract (1) by registered mail or courier service or in any other manner allowing that a delivery is provided to the sender or (2) by fax to the fax number of party stated in the contract with confirmation of delivery, or (b) in an electronic form (signed by digital signature or by scanned signature on document in PDF form) and sent by e-mail. 21.3 The document is deemed to be delivered on the third working day following the dispatch by any manner described above in the previous paragraph to the appropriate address, even if the receipt of the document by the addressee is assumed. 21.4 558 (2), 1726, 1728, 1729, 1740 (3), 1744, 1751 (2), 1757 (2) and (3), 1765, 1798 to 1800, 1950, 1995 (2) and 2630 of the Civil Code shall not apply. The contracting parties expresivelly confirm that this contract shall be concluded by them as enterpreneeurs within their business. Neither of the contracting parties has a weaker position towards the other party. 21.5 These GCS constitute, together with document to which they are attached and annexes to such document, the entire agreement and suprecede any 9
previous agreements between the contracting parties related to the subject hereof. The contracting parties agreed that in addotion to this contract no rights and obligations shall not be dedicated from former či future practise conducted between the contracting parties or business customs kept in simiral branches or in branch related to the subject of this contract. 21.6 This contract can only be modified and supplemented by written numbered amendments signed by both parties. The contract or its changes is not deemed to be agreed, until the contracting parties agreed in full consent all provisions in written form (in case of order it must be done in form of confirmation of the order in full scope without any deviation) in full extent. General Conditions of Sale of 10