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General Terms and Conditions

of STM Sensor Technologie München GmbH (STM)

Deliveries, services and proposal are based on the following terms exclusively, unless otherwise expressly agreed. If the contracting partner (referred to as the “Customer“ hereinafter) refers to its own terms and conditions, we herewith object to them inasmuch they deviate from STM’s terms or contain provisions in addition to these terms and provisions. STM’s terms shall be applicable notwithstanding other terms, in particular those that were effectively included at an earlier time, but in any case shall be considered accepted upon acceptance of STM’s services by the Customer. They shall also apply to future business transactions, even if an express reference to them was not made.

1. Proposals, entering into contracts
1.1 STM’s proposals are subject to change and non-binding. Documents that are part of the proposal such as illustrations, images, specifications as to size, weight and performance shall only be considered approximate estimates, unless otherwise expressly specified as binding. STM shall retain proprietary and ownership rights to the proposals and its associated documents, and the proposal as well as associated documents shall only be disclosed to third parties upon express agreement by STM.
1.2 The contract shall only take effect if the Customer submits a written order confirmation or order acceptance to STM.
1.3 STM’s employees and team members who are not legal representatives of STM shall not be authorized to enter into oral or written subsidiary agreements or to give assurances that exceed the scope of this contract.
1.4 Modifications or amendments of the contract effected at a later stage shall also be confirmed in writing by STM in order to take legal effect.

2. Prices / payments
2.1 Prices shown in the proposal shall be subject to change and non-binding pursuant to clause 1.1. If the parties enter into a contract, STM shall be bound by prices for performance effected within 2 months after entering into the contract. Inasmuch performance will be effected starting from the third month after entering into the contract, STM shall have the right to increase prices for such performance as long as the increase is reasonable in relation to the increase for the original costs of such services.
2.2 For deliveries of goods and services under a contract for work and services prices shall be considered ex STM’s headquarters, unless otherwise agreed. Prices are subject to the statutory applicable VAT (sales tax).
2.3 Payment for performance shall become due immediately upon billing.
2.4 In the case of engineering services STM shall have the right to bill for the performance on an hourly basis or other cost basis unless otherwise expressly agreed.
2.5 At any time, STM shall have the right to deliver performance to the Customer or a designated third party/shipping agent conditional by requesting payment of the relevant invoice amount or payment of relevant advance payments or security deposits from the buyer in exchange for delivery.
2.6 In the event of default in payment, STM shall have the right to request late-payment interest in the amount of 4 % above the respective discount rate set by the German Federal Bank. The right to assert claims for a higher late-payment penalty or other damages shall not be affected.
2.7 With respect to STM’s right to compensation for work performed the Customer shall only have the right to refuse performance until counter performance is effected, or respectively the right to offsetting, inasmuch counterclaims are not in dispute or are legally enforceable.

3. Delivery time, time of performance
3.1 The delivery period shall commence when the order confirmation pursuant to clause 1.2. is sent, however not before the Customer has delivered any partial performance, documents, permits for which it is responsible, or before receipt of an agreed deposit.
3.2 In order to determine if the delivery time was met, it is sufficient to send notification in due time for delivery of goods and services under a contract for work and services, or when the relevant services are performed in the case engineering services have been contracted.
3.3 Delivery periods shall be extended accordingly if events of force majeure occur, which include labor disputes, in particular strikes and lock-outs, as well as unforeseeable circumstances which are outside of STM’s influence. This shall also apply if such circumstances occur at STM’s sub-suppliers.
3.4 In the event the Customer suffers damages caused by a delay, which is attributable to STM, it shall be entitled to assert damages for the delay in the amount of 1 %, however not exceeding a total of 5 % of the delivery’s total value, to the exclusion of additional damage claims.
3.5. In the event delivery of performance to the Customer is delayed upon its request, STM shall nevertheless be entitled to send an invoice and the Customer shall be liable for payment. The Customer shall bear the cost of storage in such a case; no less that 0.5% of the invoice amount shall be charged per month for storage on STM’s premises. STM shall have the right to use the goods for other purposes and to send the Customer a new delivery after giving a reasonable grace period.

4. Passing of the risk / shipping / receiving goods in case of deliveries of goods and services under a contract for work and services
4.1 If the Customer does not pick up the goods, STM shall be authorized to have the goods shipped by appropriate third parties in the name and on the account of the Customer, if the Customer request shipment. STM shall only be liable for the selection of a reliable shipping company.
4.2 At the latest, the risk shall be passed to the Customer when the goods are handed over to the Customer when the goods are picked up, or when the goods are handed over to the Customer or to a shipping agent commissioned by STM.
This shall also apply to partial performance or if the shipment is part of STM’s performance as expressly agreed under the contract.
4.3 In the event shipping is delayed due to circumstances not attributable to STM, the risk shall be passed to the Customer on the day the goods are ready for shipment.
4.4 Upon the Customer’s request STM shall be authorized to insure the goods during shipment and storage against the risks to be specified by the Customer, in the Customer’s name and at its cost.
4.5 Partial deliveries are permitted.
4.6 Notwithstanding the rights specified under clause 6 goods shall also be accepted if they have minor defects.
4.A) Acceptance of engineering services
If engineering services are rendered, the Customer shall be obligated to accept the proposed services in any case, notwithstanding its other rights based on these provisions in the event of defective performance.

5. Reservation of title
5.1 STM shall reserve title to deliverables until all payments arising from this business relationship with the Customer are received. The reservation of title shall extend to the approved balance, inasmuch STM adds claims against the Customer to an open account.
5.2 In the event STM takes back deliverables, it shall not be considered a withdrawal from the contract, unless the provisions of the Installment Act apply, and with the exception of cases where STM expressly declared in writing that it is withdrawing from the contract. It shall always be considered a withdrawal from the contract if deliverables are pledged. In the event of pledging or other third party interventions the Customer shall notify STM in writing without delay and give the information required by STM to file a claim against this third party pursuant to § 771 of German Civil Procedure (ZPO). Inasmuch a third party is not in a position to reimburse STM for judicial and non-judicial costs associated with such a claim, the Customer shall be liable for payment of any damages suffered in connection with this claim.
5.3 The Customer shall have the right to resell the deliverables in a regular business transaction; however, it herewith already assigns all claims in the amount of the final invoice amount to STM (including VAT), which it will incur in connection with reselling to its purchasers or third parties, irrespective of the fact if the deliverables were resold in a processed or unprocessed condition. The purchaser shall also have the right to collect payment of these claims after they have been assigned. STM’s right to collect these claims shall not be affected thereby. However, STM shall be obligated not to collect claims as long as the Customer fulfills its payment obligations as agreed and is not in default. In the event the Customer defaults in payment or has payment difficulties,STM may request the Customer to disclose the assigned claims and its creditors, to furnish all information required for collection, to hand over the associated documents and to notify the creditors of the assignment.
5.4 If the Customer processes or rebuilds deliverables it will be carried out at its cost but always for STM. In the event the deliverables are processed with other objects not owned by STM, STM shall acquire co-ownership to the new object in a ratio equal to the value of the deliverables to the other goods that were processed at the time the processing was carried out. In other respects the other provisions set forth under clause 5 shall be applicable for the object to be created.
5.6 The Customer shall also assign the claims designated to secure STM’s claims, which arise for the Customer against third parties in connection with delivered goods and a property.
5.7 STM shall have the right to pick up retained goods from the Customer or a third party at any time. The Customer shall irrevocably authorize STM to enter the premises where the retained goods are located for this purpose.
5.8 STM shall undertake to release securities upon the Customer’s request as long as the value of the claims to be secured does not exceed 20 %.

6. Warranty
6.1 The Customer shall undertake to inspect the deliverables for obvious defects immediately upon delivery and shall notify STM in writing of such defects no later than one week after delivery. The defective deliverables shall be held for STM’s inspection in the condition they were at the time the determination was made. If this obligation is violated, any warranty or damage claims based on obvious delivery defects against STM shall be forfeited.
6.2 In the event the deliverables are defective when delivered or produced, or if they lack the agreed attributes but their value and use is only affected insignificantly, STM shall have the option to either make substitute delivery or to rectify defects. In doing so the Customer shall send the defective deliverables to STM upon its request and at the Customer’s cost. If rectification of defects fails 2 times and STM does not immediately deliver a replacement thereafter, the Customer shall have the option to either request a decrease in price or cancellation of the contract. If the contract includes multiple deliverables and if the deliverables that are free of defects do have permanent value despite the defect found in one item, the Customer’s right shall be limited to request a reduction in price.
6.3 STM shall retake ownership to deliverables that were replaced.
6.4 The period during which STM guarantees warranty shall be 12 months. It starts with the delivery or performance of services. The warranty period for replacement deliveries shall expire at the same time the warranty for the original services would have expired.
6.5 If used goods are sold warranty shall not be offered. The same shall apply to sales involving goods of inferior quality, if expressly stated as such.
6.6 Specific success shall not be owed for the performance of engineering services, unless such success has been expressly guaranteed in writing. Similarly, the deliverables shall not be considered defective if only the work method was defective or performance was defective.
6.7 Additional claims by the buyer based on warranty defects, in particular the reimbursement for damages that were not created in the deliverables themselves, but in other items, rights or persons, shall be excluded unless they were caused by acts involving intentional conduct or gross negligence by STM.

7. Withdrawal from the contract
7.1 The Customer may withdraw from the contract if the entire performance has become definitely impossible before the risk is passed. The same shall apply if a part of the delivery becomes impossible and the Customer has a justified interest in rejecting a partial delivery if similar objects are ordered; otherwise the Customer shall be obligated to accept and to pay for the partial delivery.
7.2 If there is a delay in performance attributable to STM pursuant to clause 3 above and the Customer has granted a reasonable grace period to comply to STM, which included the express statement that the delivery would be rejected upon expiry of this period and STM did not comply within this period, the Customer shall have the right to withdraw from the contract.
7.3 If performance becomes impossible while acceptance is delayed or for reasons attributable to the Customer, the Customer shall remain obligated to counterperform.
7.4 The provision set forth under clause 6.2 above shall be applicable with respect to the right of withdrawal if the warranties fail.
7.5 In the event of unforeseeable circumstances not attributable to STM pursuant to clause 3.3 above, the contract shall be amended accordingly, inasmuch the circumstances do not significantly change the content of the performance or do have significant impact on STM’s business. Inasmuch such amendments are economically not reasonable, both parties shall have the right to fully or partially withdraw from the contract. Damage claims by the Customer based on such a withdrawal shall not exist. In the event one of the parties intends to exercise this right of withdrawal it shall notify the other party without delay and state the grounds for doing so. This shall also apply if the parties initially agreed on extending the delivery time or if it was considered agreed as set forth by clause 3 above.

8. Limitation of liability
8.1 Damage claims based on impossibility of performance, positive violation of a contractual duty, liability arising at conclusion of the contract and illegal acts, as well as based on withdrawal from the contract against STM and its vicarious agents and persons employed to perform an obligation shall be excluded unless acts involving intentional conduct or gross negligence are involved.
8.2 If STM provides verbal or written consulting with respect to the technical application of deliverables, also related to third party property rights, it shall be considered non-binding, unless other express assurances were given hereto. The Customer shall independently verify if STM’s deliverables are suited for the processes and purposes intended.

9. Inventions, etc.
In the event STM, its vicarious agents or persons employed to perform an obligation may be able to create patent or other proprietary rights within the scope of performing engineering services or services under a contract for work and services, the Customer shall not acquire any rights hereto, which exceed the contractually agreed and intended use of the deliverables.

10. Miscellaneous
10.1 Place of performance and place of jurisdiction shall be Munich inasmuch the Customer is a merchant.
10.2 In other respects German procedural and substantive law shall be applicable to all other affairs associated with this contract and potential disputes arising under the contract unless otherwise expressly agreed.
10.3 In the event provisions of this contract or these terms are or become invalid, the overall contract or the remaining provisions shall not be affected. In such a case the parties shall undertake to replace the invalid provision by a valid provision that comes as close as possible to the economic purpose intended. The same shall apply for omissions.