General terms and conditions of purchasing

I. Applicability, written form
1. Purchases of all goods and deliveries ex works of TCS AG (hereinafter called TCS) for current as well as future business cooperations are solely based upon these General Terms and Conditions of Purchasing, even if the goods still have to be manufactured. 
2. The General Terms and Conditions of the contractors (hereinafter called supplier), especially general terms and conditions of contract of sale, only apply sofar as TCS has explicitly accepted these in writing. The recognition of external clauses by TCS does not effect the other clauses of the given Terms and Conditions of Purchasing.
3. All statements of both parties concerning this contract as well as changes and additional agreements require the written form in order to be effective (also telefax or email). This requirement of written form may only be renounced by written agreement.

II. Conclusion of contract, contract terms
1. For first-time orders with a supplier, the contract with TCS is entered if the supplier sends a written duly signed order form within 3 days to TCS. Orders given orally or by telephone as well as orders without a duly signed order form are only valid if these are approved by TCS in writing. Within the scope of an ongoing business relationship, a contract between TCS and the supplier is entered if the supplier does not contradict the order within 3 days of receiving the written order by TCS. 
2. The characteristics of products and specification stated in the order letter from TCS as well as any other advertising information, product descriptions, warranties or any other suppliers’ information shall be part of the contract.

III. Delivery, cost of delivery, packaging
1. Delivery will be made to the address corresponding to the address stated on the order, otherwise to TCS headquarters in Genthin/Saxony-Anhalt. 
2. The supplier may deliver partial quantities only if both parties have agreed in writing.
3. Costs for delivery to the final destination as well as for packaging shall be borne by the supplier. The supplier is obliged to take back empty containers without charging freight costs at the full value.
4. In case TCS accepts the costs for delivery, only with written agreement between TCS and the supplier, the supplier shall use the freight forwarder specified by TCS; if no freight forwarder is specified, the least expensive shipping mode shall be chosen. 
5. The type and method of packaging shall be agreed upon in writing with TCS. If no such agreement has been made, the most secure packaging shall be used.

IV. Delivery dates, delays in delivery
1. The delivery dates and deadlines mentioned in the order letter are binding and refer to the arrival of the goods at the forwarding address. The course of delivery dates begin to run upon receipt of the order letter by the supplier. 
2. The supplier shall be in default, in case of exceeding the agreed delivery dates and times without the necessity of a reminder. 
3. After the unsuccessful expiry of a reasonable period of grace provided by TCS to carry out outstanding deliveries, TCS may withdraw from the contract and request compensation instead of delivery. No deadline needs to be set if the goods are not of interest for TCS anylonger due to the delay or if there are circumstances that make it unreasonable for TCS to wait any longer.
Withdrawal may also be limited to the deliveries which have not been provided yet. 
4. Even before any occurence of default, TCS may enforce its rights of IV.3. where it it is obvious that these conditions will come into existence. 
5. In the event of delay, the supplier has to carry all damages resulting from the delay especially extra costs for replacement deliveries carried out by third parties. 
6. If the supplier recognises that compliance with the agreed period or date is not possible, the supplier shall notify TCS in writing within 3 working days of the reasons and the estimated duration of the delay. If he fails to do so the supplier has to carry all damages resulting from no prior notification.

V. Risks, transport insurance
1. The risk of transport shall be borne by the supplier no matter who requested the shipment and from which place it is made. 
2. The supplier shall sufficiently protect the goods against transport damage at its own expanse.

VI. Acceptance
All circumstances lying outside of the sphere of TCS due to which it would be impossible or unreasonable for TCS to accept the goods in order to fulfill the contract, TCS shall be released from the duty to the timely reception resp. acception of the service/goods for the period during which these circumstances prevail. An acceptance according to statutory regulations must be clarified in writing and is not substituted by mere initial operation.

VII. Prices, invoices, payment
1. Agreed prices are firm and include any services that belong to the contractual fulfillment and the obligation to perform of the customer. 
2. The manufacture of drawings, samples, etc. by the supplier in order to accomplish its contract shall not be remunerated separately. 
3. The supplier can only charge part deliveries seperately, provided these were agreed upon according to III.2. Otherwise, invoicing the goods shall only be done following complete delivery. 
4. Interim payments shall be stated separately in the final invoice.
5. Payments shall be made within the agreed payment period after complete fullfillment of the delivery and presentation of an orderly and verifiable invoice. Delays due to incorrect or incomplete invoices do not affect discount periods.

VIII. Setoff
The supplier shall only setoff against claims of TCS in case of indisputeable or legally determined claims.

IX. Warranty
1. The supplier guarantees that the goods comply to the agreed characteristics of the goods and are in conformity with the contractual purpose. Minimum requirement is the latest state of technology. 
2. Warranty is granted for a period of 5 years for such goods that are used in a building in accordance with their usual manner of use and may cause defectiveness, in all other cases the warranty is granted for 2 years. 
3. Defects
a) A defect is any insignificant deviation from product consistency according to II.2. as stated in the contract or from the latest state of technology. With contradictory information, the goods have to comply with the respective higher requirements. Goods are deficient if
- plants, machinery and other tools do not comply to the regulation of the equipment safety law;
- electrical engineering-related material does not comply to the regulations of the association of German Electrical Engineers (VDE); or
- materials do not fullfil the regulations accodring to German or European law, including Electrical and Electronic Equipment Act (ElektroG), EU directive 2002/95/EG (RoHS) and 2002/96/EG (WEEE), as well as the directive (EG) No. 1907/2006 (REACH).
b) A defect shall also be if the goods are encumbered with rights of third parties e.g. patents and other commercial protective rights or do not satisfy statutory and legal requirements and constraints.
4. Final deadlines provided by the supplier for the assertion of claims are not binding. In case of a complaint about obvious defects, up to 14 days after handing-over the goods to TCS or after acceptance of the goods is deemed immediately and therefore on time. The conditions subsequent to §§ 377, 378 of the Code of Commercial Law are excluded.
5. Supplementary performance
a) The supplier is obliged to repair any defects immediately at his expenses, at the option of TCS either by rectification or replacement delivery. Further, the supplier shall compensate for the damages incurred to TCS.
b) In the event of supplementary performance the warranty period for replaced or repaired parts shall start again. 
c) If the supplier fails to comply with its obligation to render supplementary performance within a reasonable period of time, TCS may remedy the defect at the suppliers’ expense or withdraw from the contract. Goods shall be returned at the expense and risk of the supplier. Further TCS is entitled to a claim for damages instead of the services. A deadline is expendable if the supplier denies the existence of the default or rejects the warranty or if it is unacceptable for TCS due to the circumstances of the particular case to await any further attempts at improvement 
6. Annulments and reductions
After an unsuccesful attempt at improvement (in item 1), TCS may withdraw from the contract or demand a reduction of the purchase price. Further, TCS may demand compensation from the supplier.
7. The period of limitation for warranty claims shall be suspended by the establishment of the defect during the running warranty period. The suspension does not end before the warranty claim has been fulfilled.

X. Liability
1. The supplier is unrestrictedly liable for all damages regardless of legal norm standards. In particular, the supplier is liable for distant consequential damages and pecuniary losses. 
2. TCS
a) TCS is liable for damaged causes intentionally or due to gross negligence. 
b) Liability for simple negligence shall be excluded irrespective of their legal grounds. In case of negligent injury of substantial contractual obligations, liability for such immediate damages, which one reasonably had not anticipated , or whose occurence TCS cannot influence, is limited to the amount of the contract value (purchase price) and liability for TCS for indirect damages and consequential damages is excluded.
c) Liability of TCS for damage to live, body or health is limited to a negligent or intentional breach of duty. 
d) All these limitations of liability shall also apply to the benefit of TCS’ agents and subcontractors.

XI. Samples and templates
1. Drawings, samples and templates as well as plans and goods manufactured according to TCS are produced for TCS as manufacturer. In case TCS will not already be legally owner of these objects, the supplier already assigns ownership to TCS. The supplier is obligated to store items at his expenses. 
2. All copyrights for the mentioned items as well as other intellectual property rights shall remain with TCS. Further utilization of these items by the supplier or by third parties requires written agreement by TCS.

XII. Place of performance, choice of law, place of jurisdiction
1. Place of performance is the address stated in the order letter. 
2. German law shall apply. 
3. In commercial transactions, local court Stendal/Saxony-Anhalt is sole place of jurisdiction, TCS may also take legal action against the supplier at any other legal place of jurisdiction.

Genthin, 01.12.2014

TCS TürControlSysteme AG · Geschwister-Scholl-Straße 7 · 39307 Genthin
Telefon +49 3933 8799-10 · Fax +49 3933 8799-11 · E-Mail info@tcsag.de