General Terms and Conditions of Sales of Spohn + Burkhardt India Electrotechnical Private Limited

General

1. The supply of all goods (“Goods”) and services (“Services”) to be supplied by Spohn + Burkhardt India Electrotechnical Private Limited (the “Supplier”) to any customer under any agreement (“Purchaser”), howsoever concluded (“Contract”), shall be entered into in writing and shall be governed by these general terms and conditions (“Conditions”) to the exclusion of any other terms and conditions contained or referred to in any documentation submitted by the Purchaser or in correspondence or elsewhere or implied by trade custom practice or course of dealing. General terms and conditions of the Purchaser shall apply only if and when expressly accepted by the in writing in advance.
2. All intellectual property rights and without prejudice to the generality of the foregoing to include copyright design right patents trademarks and know-how whether registered or not in the Supplier’s cost estimates, drawings, designs, specifications, samples, and any other documents (hereinafter referred to as “Documents”) shall remain the absolute property of the Supplier and the Supplier’s ownership shall not be effected by any contribution and/or payment towards the costs of the samples and/or tools by the Purchaser whether in full or in part. The Documents shall not be made accessible to third parties without the Supplier‘s prior consent and shall, upon request, be returned without undue delay to the Supplier. Contract is entered into between the Supplier and the Buyer is not awarded to the Supplier. The aforesaid sentences shall apply mutatis mutandis to documents of the Purchaser, except that, these may be made accessible to third parties to whom the Supplier may rightfully transfer Supplies.
3. The Purchaser shall have the non-exclusive right to use standard software or computer program, provided that it remains unchanged, is used within the agreed performance parameters, and on the agreed equipment. The Purchaser may make one back-up copy without express agreement.
4. Partial deliveries shall be allowed, unless they are unreasonable to accept for the Purchaser.
5. The Supplier’s employees or agents are not authorized to make any representations concerning any Goods or Services unless confirmed by the Supplier in writing. Any information made available in connection with any offer for the supply of Goods or Services, including photographs, drawings, data about the extent of the delivery, appearance, performance, dimensions, weight, consumption of operating materials, operating costs, is not binding unless expressly designated as binding by the Supplier in writing. In entering into the Contract the Purchaser acknowledges that it does not rely on and waives any claim based on any such representations or information not so confirmed.
6. Any advice or recommendation given by the Supplier or its employees or agents to the Purchaser or its employees or agents which is not confirmed in writing by the Supplier is followed or acted upon entirely at the Purchaser’s own risk and accordingly the Supplier shall not be liable for any such advice or recommendation which is not so confirmed.

Order and Specifications

1. No order submitted by the Purchaser shall be deemed to be accepted by the Supplier unless and until confirmed in writing by the Supplier’s authorized representative.
2. The Purchaser shall be responsible to the Supplier for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Purchaser and for giving the Supplier any necessary information relating to the Goods and/or Services within a sufficient time to enable the Supplier to perform the Contract in accordance with its terms.
3. The quantity quality and description of and any specification for the Goods and/or the description of the Services shall be those set out in the Supplier’s quotation (if accepted by the Purchaser) or the Purchaser’s order (if accepted by the Supplier) or as otherwise set out in any Contractual documentation.
4. If any process is to be applied to the Goods or in the performance of the Services by the Supplier in accordance with a specification submitted by the Purchaser, the Purchaser shall indemnify the Supplier against all loss damages costs and expenses awarded against or incurred by the Supplier in connection with or paid or agreed to be paid by the Supplier in settlement of any claim for infringement of any patent copyright design trade mark or other industrial or intellectual property rights of any other person which results from the Supplier’s use of the Purchaser’s specification. If any allegation of infringement is made by a third party, the Supplier is not obliged to enquire into the merits of the allegation but is entitled to terminate the Contract and claim compensation for all loss (including loss of profit) costs (including the cost of all labor and materials used) damages charges and expenses incurred by the Supplier up to the time of termination.
5. The Supplier reserves the right to make any changes in the specification of the Goods or Services which are required to conform with any applicable statutory or regulatory requirements or where the Goods or Services are to be supplied to the Supplier’s specification which do not materially affect their quality or performance.
6. No concluded Contract may be modified or cancelled by the Purchaser except with the agreement in writing of the Supplier and on terms that the Purchaser shall indemnify the Supplier in full against all loss (including loss of profit) costs (including the cost of all labor and materials used) damages charges and expenses incurred by the Supplier as a result of the modification or cancellation, as the case may be.
7. Unless agreed in writing by the Supplier all drawings designs specifications and particulars submitted by the Supplier are approximate and only for information purposes so the Purchaser cannot rely on the accuracy of the same.

Prices and Terms of Payment

1. Prices for the Goods and/or Services shall be price stated in the Supplier’s offer which has been accepted by the Purchaser or the price stated in the Purchaser’s offer which has been accepted by the Supplier, or where the price has not been explicitly mentioned, the price listed in the Supplier’s published price list current at the date of conclusion of the Contract. All prices are quoted on an ex works Bangalore basis and exclude the costs of packaging and any applicable Goods and services tax, or similar tax which the Purchaser shall be additionally liable to pay to the Supplier.
2. If the Supplier is also obliged to perform any assembly, erection or similar Services, unless otherwise agreed, the Purchaser shall pay the price for the Services plus any incidental costs incurred, such as but not limited to travel costs, subsistence allowances, overnight expenses, surcharges for Sundays and public holidays, costs for the transport of tools and equipment, and personal luggage.
3. The Supplier shall be entitled to receive the price net of all bank charges, taxes and similar expenses.
4. The Purchaser may set off only those claims that are expressly acknowledged by the Supplier in writing.
5. The Purchaser shall meet the cost of any packaging of the Goods which it may request, or which may be necessitated by delivery by any means other than the Supplier’s normal means of delivery. The Purchaser shall unless otherwise agreed be solely responsible for the disposal of all packaging in accordance with all regulations whether statutory or otherwise relating to protection of the environment.
6. If no other specific terms have been agreed in writing between the Purchaser and the Supplier, the following terms shall apply:
   
   The Supplier shall be entitled to invoice the Purchaser:

1. on or at any time after delivery of the Goods unless the Goods are to be collected by the Purchaser or the Purchaser wrongfully fails to take delivery of the Goods in which event the Supplier shall be entitled to invoice the Purchaser for the price at any time after the Supplier has notified the Purchaser that the Goods are ready for collection or (as the case may be) the Supplier has tendered delivery of the Goods;
2. at any time after performance of the Services.
   
   The Purchaser shall pay the price:

1. Goods within (30) days of the invoice date unless another payment term has been agreed in writing;
2. for Services, within (30) days of the invoice date.
3. The Supplier is entitled in its absolute discretion from time to time to require full or partial payment of the price of the Goods prior to delivery. Without prejudice to the foregoing, if in the Supplier’s opinion the Purchaser’s creditworthiness deteriorates before delivery of the Goods the Supplier may require full or partial payment of the price prior to delivery or the provision of security by the Purchaser in a form acceptable to the Supplier.
4. If the Purchaser fails to make any payment on the due date, then without prejudice to any other right or remedy available to the Supplier the Supplier shall be entitled to:

• Cancel the Contract or suspend any further deliveries of the Goods or suspend further performance of the Services; and/or
• Appropriate any payment made by the Purchaser to such of the Goods (or the goods supplied under any other contract between the Purchaser and the Supplier) as the Supplier may think fit (notwithstanding any purported appropriation by the Purchaser); and/or
• Late payment must be settled as per the payment terms of Supplier. Otherwise, interest @ 1% per month will be charged on all overdue account until payment, inclusive of interest, is received.

Retention of Title

Notwithstanding delivery and the passing of risk of the Goods, all Goods (“Retained Goods”) shall remain the property of the Supplier until each and every claim the Supplier has against the Purchaser on account of their business relationship, which may be due that that relevant time, has been fulfilled and fully paid.

Until such time as the property in the Goods passes to the Buyer, the Purchaser shall hold the Goods as the Supplier’s fiduciary agent and bailee and shall keep the Goods separate from those of the Purchaser and third parties and properly stored protected and insured and identified as the Supplier’s property. The Purchaser may not pledge the Retained Goods or use them as security, and resale shall be possible in the ordinary course of their business and only on condition that the Purchaser receives payment from its customer or makes the transfer of property to the customer dependent upon the customer fulfilling its obligation to effect payment. The Purchaser shall account to the Supplier for the proceeds of sale or otherwise of the Goods whether tangible or intangible including insurance proceeds and shall keep all such proceeds separate from any moneys or property of the Purchaser and third parties and in the case of tangible proceeds properly stored protected and insured.

The Purchaser shall inform the Supplier forthwith any matter, which may affect the Retained Goods, including but not limited to any seizure or other act of intervention by third parties.

Until such time as the property in the Goods passes to the Purchaser (and provided the Goods are still in existence and have not been resold) the Supplier shall be entitled at any time to require the Purchaser to deliver up the Goods to the Supplier and if the Purchaser fails to do so forthwith to enter upon any premises of the Purchaser or any third party where the Goods are stored and repossess the Goods. The Purchaser hereby irrevocably appoints the Supplier and its representatives as its duly authorized agent for the purpose of entering up-on any premises where the Goods are stored for the purpose of examination and/or recovery of the same at any time without notice.

Where the Goods have been incorporated by the Purchaser into any product or article in such a way that the substance and identity of the Goods have been irrevocably altered or destroyed, then property in such new product(s) or article(s) shall immediately upon its or their creation vest wholly in the Supplier, and the provisions of the preceding sub-conditions shall apply mutandis to such products or articles as if they were Goods remaining the property of the Supplier; provided that this sub-condition shall not apply if the Supplier has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Supplier to the Purchaser for which payment is then due. For the avoidance of doubt, it is hereby declared that the provisions of the preceding sub-conditions shall continue to apply to Goods which have been incorporated by the Purchaser into any product or article in such a way that it would apply if the substance and identity of the Goods had not been irrevocably altered or destroyed.

The Purchaser shall indemnify the Supplier against all loss damages costs expenses and legal fees incurred by the Supplier in connection with the assertion and enforcement of the Supplier’s rights under this condition.

Time for Supplies; Delay

Unless otherwise agreed, delivery of the Goods shall be made pursuant to the Incoterm Ex Works, Incoterms being the international rules for the interpretation of trade names of the International Chamber of Commerce in 2012. If the parties agree on some other mode of delivery per Incoterms, the Supplier’s delivery obligations shall be determined according to that applicable Incoterm. Save for obligations according to the applicable Incoterm or obligations expressly undertaken by the Supplier in writing, the Supplier shall have no other obligations, in particular obligations which it might otherwise have according to the provisions of the Sale of Goods Act.

Times set for deliveries can only be observed if all Documents to be supplied by the Purchaser and, all necessary permits and releases, which are necessary for the delivery of the Goods and the performance of the Services, especially concerning plans, are received in time and if agreed terms of payment and other obligations of the Purchaser due to be performed are fulfilled failing which, delivery times set shall be extended appropriately; this shall not apply where the Supplier is responsible for the delay.

If non-observance of delivery times set is due to force majeure events, such as but not limited to acts of God, mobilization, import or export regulations or embargoes, war, rebellion, interruption of traffic, strike, lockout or other industrial actions or trade disputes (whether involving employees of the Supplier or of a third party); interruption of production or operation, difficulties in obtaining raw materials labor fuel parts or machinery and power failure or breakdown in machinery (“Force Majeure Event”) the Supplier shall not be liable for such delay and time for delivery shall be extended for the duration of the Force Majeure Event accordingly.

Purchaser’s claims for damages due to delayed Goods and Services shall be limited to the remedies provided for in Condition IV(4) hereinabove. This shall not apply in cases of statutory mandatory liability.

If the Supplier has failed to deliver the Goods or perform the Services in accordance with the Contract, the Purchaser shall be entitled, by serving written notice on the Supplier, to demand performance within a specified time thereafter, and if the Supplier fails to do so within the specified time, the Purchaser shall be entitled to terminate the Contract in respect of the undelivered Goods or unperformed Services and claim compensation as provided for in Condition IV(4) hereinabove.

If the Purchaser fails to take delivery of the Goods for a period exceeding on month from the contractual date of delivery or fails to give the Supplier adequate delivery instructions for a period exceeding on month from the time stated for delivery (otherwise than by reason of any cause beyond the Purchaser’s reasonable control or by reason of the Supplier’s fault) then without prejudice to any other right or remedy available to the Supplier, the Supplier may:

1. Store the Goods until actual delivery and charge the Purchaser for the reasonable costs (including insurance) of storage, which shall, unless otherwise evidenced by the Supplier, be fixed at 0.5 % of the price of stored Goods for every month of storage, but in no case more than a maximum cumulative amount of 5% of the same.
2. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Purchaser for the excess over the price under the Contract provided the price has been paid in cleared funds in full or charge the Purchaser for any short-fall below the price under the Contract; or
3. terminate the Contract and claim damages.

Transfer of Risk

1. Risk of damage to or loss of the Goods shall pass to the Purchaser:
   in the case of Goods to be delivered at the Supplier’s premises, at the time when the Supplier notifies the Purchaser that the Goods are available for collection or

1. in the case of Goods to be delivered otherwise than at the Supplier’s premises, at the time of delivery or if the Purchaser wrongfully fails to take delivery of the Goods, the time when the Supplier has tendered delivery of the Goods.
   2. Even where delivery has been agreed freight free, the risk shall pass to the Purchaser as follows:
2. if the Supplies do not include assembly or erection, at the time when the Supplies are shipped or picked up by the carrier.
3. Upon request of the Purchaser, the Supplier shall insure the Supplies against the usual risks of transport at the expense of the Purchaser.
   3. The risk shall pass to the Purchaser if dispatch, shipping, the start, or performance of assembly or erection, the taking over in the own works or the trial run is delayed for reasons for which the Purchaser is responsible or if the Purchaser has otherwise failed to accept the Supplies.

Performance of Services: Assembly and Erection

Assembly of the materials supplied shall be provided by the Supplier only if agreed in writing in advance.

Receiving of Supplies

The Purchaser shall not refuse to receive Goods or Services due to minor defects.

Warranty

1. Subject as expressly provided in these Conditions all other warranties conditions or terms, including those implied by statute or common law, are excluded to the fullest extent permitted by law.
2. Subject to this Condition, the Supplier warrants that the Goods will correspond with their specification at the time of delivery and agrees to remedy any non-conformity therein for period of 12 months commencing from the date on which the Goods are delivered or deemed to be delivered (“Warranty Period”). Where the Purchaser is dealing as a consumer (within the meaning of the Indian Contract Act 1872, the Supplier further gives to the Purchaser such implied warranties as cannot be excluded by law.
3. The Supplier’s above warranty concerning the Goods is given subject to the following conditions:
   
   No condition is made or to be implied nor is any warranty given or to be implied as to the life or wear of the Goods supplied or that they will be suitable for any particular purpose or use under any specific conditions, notwithstanding that such purpose or conditions may be known or made known to the Supplier.
   Any description given of the Goods is given by way of identification only and the use of such description shall not constitute a sale by description.
   Notwithstanding that a sample of the Goods has been exhibited to and inspected by the Purchaser, it is hereby declared that such sample was not so exhibited and inspected as to constitute a sale by sample under the Contract.
   The Supplier binds itself only to deliver Goods in accordance with the general description under which they were sold, whether any special or particular description shall have been given or shall be implied by law. Any such special or description shall be taken only as the expression of the Supplier’s opinion in that behalf. The Supplier does not give any warranty as to the quality state condition or fitness of the Goods.
   The above warranty does not extend to parts materials or equipment not manufactured by the Supplier in respect of which the Purchaser shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Supplier.
   The Supplier shall be under no liability for the following measures and actions taken by the Purchaser or third parties and the consequences thereof: improper remedy of defects, alteration of the Goods without the prior agreement of the Supplier, addition, and insertion of parts, in particular of spare parts which do not come from the Supplier.
   The Supplier shall be under no liability in respect of any defect in the Goods or any other claim arising from any drawing design or specification supplied by the Purchaser.
   The Supplier shall be under no liability in respect of any defect arising from unsuitable, faulty or improper use, defective installation or commissioning by the Purchaser or third parties, fair wear and tear, willful damage, negligence, abnormal working conditions, defective or negligent handling, improper maintenance, excessive load/strain, unsuitable operating materials and replacement materials, poor work, unsuitable foundation, chemical, electro-technical/electronic or electric influences, failure to follow the Supplier’s instructions (whether oral or in writing) misuse, alteration or repair of the Goods without the Supplier’s approval., inappropriate foundation soil or from risks of external influences not expressly assumed under the Contract, or from non reproducible software errors.
   The Supplier is not liable for any loss damage or liability of any kind suffered by any third party directly or indirectly caused by repairs or remedial work carried out without the Supplier’s prior written approval and the Purchaser shall indemnify the Supplier against each loss liability and cost arising out of such claims.
   The Supplier shall be under no liability under the above warranty (or any other warranty condition or guarantee) if the total price for the Goods and/or Services has not been paid in cleared funds by the due date for payment.
   The Supplier shall be under no liability whatsoever in respect of any defect in the Goods arising after the expiry of the Warranty Period.
   defective workmanship, Claims based on defects attributable to improper modifications or repair work carried out by the Purchaser or third parties and the consequences thereof shall be likewise excluded.

Defects as to Quality

The Supplier shall be liable for defects as to quality (hereinafter referred to as “Defects”) as follows:

In the event of a Defect within Warranty Period, all Goods and Services shall, at the discretion of the Supplier, be repaired, replaced or provided again free of charge irrespective of the hours of operation elapsed, provided that the Defect or the reason for the Defect had already existed at the time when the risk in the Goods passed to the Purchaser and provided that a valid notification of defect has been made, as provided for herein below.

Any claim by the Purchaser which is based on any defect in the quality or condition of the Goods or Services or their failure to correspond with specification shall be notified to the Supplier within seven days from the date of receipt of the Goods or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If the Purchaser does not give due notification to the Supplier as aforesaid, the Supplier shall have no liability for any defect or failure or for any consequences resulting therefrom. The Purchaser shall also examine the Goods for defects before every commissioning, in particular regarding safety and suitability for use. During use, the Goods shall be monitored constantly with regard to safety and defects. If there are even slight reservations concerning the suitability for use or the slightest reservations concerning safety, the Goods must not be used or the operation must be shut down immediately. The Supplier shall be given written notification immediately, specifying the reservations or the defect.

The Supplier shall first be given the opportunity to supplement its repair or replace defective Goods or Services (“Subsequent Performance”) within a reasonable period of time.

In no event shall the Purchaser be entitled to reject the Goods on the basis of any defect or failure, except where the failure is such that the Goods delivered are of a fundamentally different nature than those which the Supplier had contracted to deliver. There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, of only minor impairment of usefulness or, of natural wear and tear or damage arising after the transfer of risk.

The Purchaser shall have no claim with respect to expenses incurred in the course of Subsequent Performance, including costs of travel and transport, labor, and material, to the extent that expenses are increased because the Goods were subsequently brought to another location than the Purchaser‘s premises branch office, unless doing so complies with the intended use of the Supplies.

Force Majeure;

To the extent that Supplies are impossible to be carried out, the Purchaser shall not be entitled to claim any damages, unless the Supplier is not responsible for the impossibility. The Purchaser‘s claim for damages shall, however, be limited to an amount of 10% of the value of the part of the Supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in the case of mandatory liability based on intent, gross negligence or injury of life, body or health; this does not imply a change in the burden of proof to the detriment of the Purchaser. The right of the Purchaser to cancel the contract shall remain unaffected.

Where a Force Majeure Event substantially changes the economic importance or the scope of the Goods and Services or considerably affect the Supplier‘s business, the contract shall be adapted taking into account the principles of reasonableness and good faith. Where doing so is economically unreasonable, the Supplier shall have the right to terminate the Contract. If the Supplier intends to exercise its right to terminate the Contract, it shall notify the Purchaser thereof without undue delay; this shall also apply even where an extension of the delivery period had previously been agreed with the Purchaser.

Limitation of Liability

The Supplier shall not accept liability to the Purchaser for death or injury resulting from its own or that of its employees’ negligence. Save as aforesaid, the Supplier’s liability under or in connection with the Contract shall be subject to the limitations set out in this Condition

The Supplier shall be under no liability whatsoever where this arises from a reason beyond its reasonable control, in particular, a Force Majeure Event or from an act or default of the Purchaser.

In no event shall the Supplier be liable for loss of profit or goodwill, loss of production or revenue or any type of special indirect or consequential loss whatsoever (including loss or damage suffered by the Purchaser as a result of an action brought by a third party) even if such loss were reasonably foreseeable or the Supplier had been advised of the possibility of the Purchaser incurring the same.

Without prejudice to the sub-limits of liability contained in these Conditions, the Supplier’s maximum and cumulative total liability (including any liability for acts and omissions of its employees agents and sub-contractors) in respect of any and all claims for defective performance, breach of contract, compensation, indemnity, tort, misrepresentation, negligence at law or equity and any other damages or losses which may arise in connection with its performance or non-performance under the Contract, shall not exceed (100)% of the total Contract price.

If a number of events give rise substantially to the same loss they shall be regarded as giving rise to only one claim under these Conditions.

No action shall be brought by the Purchaser later than 12 months after the date it became aware of the circumstances giving rise to a claim or the date when it ought reasonably to have become aware, and in any event, no later than 12 months after the end of the Warranty Period.

Termination

1. On or at any time after the occurrence of any of the events in condition 13.2 the Supplier may stop any Goods in transit, suspend further deliveries to the Purchaser, suspend performance of the Services, exercise its rights under Condition 3 and/or terminate the Contract with the Purchaser with immediate effect by written notice to the Purchaser.
2. The events are:-
   The Purchaser being in breach of an obligation under the Contract;
   The Purchaser passing a resolution for its winding up or a court of competent jurisdiction making an order for the Purchaser’s winding up or dissolution;
   The making of an administration order in relation to the Purchaser or the appointment of a receiver over or an encumbrance taking possession of or selling any of the Purchaser’s assets;
   The Purchaser making an arrangement or composition with its creditors generally or applying to a Court of competent jurisdiction for protection from its creditors.

Venue and Applicable Law

1. The Contract shall be governed by the laws of India and the Purchaser agrees to submit to the non-exclusive jurisdiction of the Courts in Bangalore.
2. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any Contract for the sale of Goods.

Severability Clause

If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.