Terms of Sale and Delivery

1. Area of Application

1.1. ELMOS terms of sale and delivery apply as a supplement to its order confirma­tion and for all of the ELMOS deliveries to companies, provided that the con­tract is part of the operation of their business, commerce and industry, to legal entities of public law and to separate assets under public law (customer).
1.2. As the sole valid terms of contract, ELMOS terms of sale and delivery take precedence over all other regulations, particularly the customer’s terms of pur­chasing. Should an order have been placed with reference made to terms of purchasing which contradict the ELMOS terms of sale and delivery in part or their entirety, then, in this connection, ELMOS expressively rejects any such terms of purchasing.
1.3. Deviations from the ELMOS terms of sale and delivery require an explicit written confirmation in every event.
1.4. In the event of individual regulations being void or validly amended, the re­maining regulations of these terms of sale and delivery remain unaffected.

2. Order

2.1. For its legal acceptance, each and every order requires the written confirma­tion of ELMOS. These Terms of Sale and Delivery also apply if a deal is made without a written confirmation of ELMOS.
2.2. Any additional agreements as well as subsequent supplements to and amend­ments of the order must be made in writing to be legally binding.

3. Prices

3.1. ELMOS prices are ex works, excluding any taxes like VAT or other taxes and excluding packaging, transportation and insurance. All taxes as well as costs for packaging, transportation and insurance have to be born by the customer.
3.2. The prices which apply are those listed in the order confirmation in Euro (€). In cases of offers and order confirmations being made in a foreign currency, then the binding of the foreign currency shall only apply if the ex­change rate of the foreign currency does not fluctuate in comparison to the Euro by more than +/- 5% between the date of the order confirmation and the date of the invoice. In the event of the exchange rate fluctuating by more than +/- 5%, ELMOS reserves the right to re-determine the prices for the remaining deliveries in correspondence with the fluctuation of the exchange rate.

4. Deliveries

4.1. The delivery times stated in the order confirmation apply ex-works Dortmund. A failure to meet the delivery times stated in the order confirmation may only be considered as being a delay if the customer has settled all of the payments due to ELMOS and given ELMOS a written reminder. This is also applicable if the delivery time is determined according to the calendar. ELMOS will only be liable for compensation of damage caused by delay in cases of gross negligence or intent.
4.2. Should the customer cancel the order, then he must pay in full all materials/ component parts/manufactures (products) which have already been manufactured or which are in production. For the products which are not yet in production, the customer has to pay 30% of the products value.
4.3. The minimum order quantity (of ASICs) is one batch (25 wafers) to be commissioned within one calendar year. Small-volume purchases will be invoiced at the price of one batch.
4.4. Due to the fluctuating yields in manufacturing ICs, ELMOS has the right to over- or under-deliver the agreed quantities by up to 20%.
4.5. The risk will be transferred to the customer as soon as the products are handed over to the freight carrier. Should the customer pick up the products, then the risk will be transferred with the notification that the products are ready to be picked up.
4.6. Packaging costs are not contained in the sales price. The customer will carry the costs for the disposal of packaging.
4.7. Should the customer suffer a substantial deterioration of the pecuniary and/or liquidity situation after the conclusion of the contract, or should such circumstances, which already existed before the conclusion of the contract, only become known after the said conclusion, then ELMOS is entitled to withdraw from the contract and/or request immediate payment of all outstanding invoices, even if the payments had been previously deferred in part or whole or settled with a draft. In particular the following events are to be regarded as being dete­riorations of this nature: drafts and cheque protests, seizure, discontinuation of payments, the filing of insolvency or bankruptcy proceedings.

5. Payments

5.1. Invoices of ELMOS are due for payment without deduction within 30 days of the invoice date. For payments received later than 30 days from the invoice date, interest amounting to 5% above the base rate of the Deutsche Bundesbank is due as of the date of maturity. Furthermore, ELMOS reserves the right to claim additional damages resulting from the delay.
5.2. In case of overdue payments, ELMOS has the right to suspend all deliveries until complete payment for all outstanding invoices has been received and re­quest advance payment, even if other terms of payment have been agreed.
5.3. Payments by draft may only be made with the prior and written approval of ELMOS. In this case, the customer will carry all charges for draft, collection and discount.
5.4. The customer may only set off counter-demands against accounts receivable of ELMOS if these are undisputed or have been legally determined. The same applies to the right of retention.

6. Warranty

6.1. The products will be delivered in accordance with the agreed specification and will have successfully passed a test programme if this was agreed.
6.2. Products, defective in the sense of item 6.1 on the transfer of risk and sent back to ELMOS within the legal period of warranty, will - if the customer so wishes - be replaced by faultless products or reimbursed at the sales price by ELMOS. A claim for damages is excluded, unless the products are lacking a characteristic which had previously been guaranteed explicitly in writing.
6.3. ELMOS reserves the right to carry out changes at any time to the production process which do not affect the agreed specification of the product.
6.4. The customer is responsible for ensuring permanent traceability of the individual embedded ELMOS products according to ELMOS project and batch numbers by means of appropriate archiving. Should a callback be necessary due to a malfunction in the customer application, ELMOS is only obliged to meet claims based on precisely traceable ELMOS products. The customer will indemnify ELMOS from any further claims.

7. Property Rights and Copyright

7.1. The customer will be liable for any possible violation of property rights, copyrights or any competitive rights of third parties, caused by ELMOS while using designs, specifications and instructions provided by the customer, provided that ELMOS is not solely or partially liable as a result of gross negligence or intent. In these cases, the customer is obligated to exempt ELMOS from any demands or other claims which a third party raises against ELMOS with the pretention that one of their rights has been violated by these said activities.
7.2. Should claims be raised against the customer as a result of the violation of copy­rights,patent law, patterns and design, topography, trademark or similar rights and if ELMOS is responsible for this claimed violation of rights, then ELMOS must be notified immediately. The further procedure is to be agreed upon with ELMOS: on their request, ELMOS is to be permitted to conduct the legal disputes. The customer and the his customers are required to support ELMOS in the legal disputes to the best of their ability. Claims for damages from circumstances of this nature are limited to the purchasing price of the relevant products.
7.3. No property rights or copyrights are transferred to the customer through purchasing one of the ELMOS products.

8. Claims for damages

Regardless of the legal justification, the customer does not have any right to claim damages, except - not withstanding the regulations in the items 4.1. and 6.2. - in cases of intent or gross negligence. This regulation also applies in favour of the employees and subcontractors of ELMOS.

9. Extended and Prolonged Reservation of Property

9.1. Products which ELMOS has delivered (reserved goods) remain the property of ELMOS until all the customer´s obligations arising from commercial transactions with ELMOS have been paid off in full.
9.2. If ELMOS accepts the return of products, then this may only be deemed as a resiliation of the contract if ELMOS confirms this explicitly in writing. However, the seizure of delivered products has always to be considered as a resiliation of the contract.
9.3. ELMOS has to be notified immediately about all seizures or any other endangering of ELMOS rights by third parties, listing all details which ELMOS needs for an intervention suit in accordance with §771 ZPO. Should ELMOS suffer loss as a result of the fact that a third party is unable to reimburse ELMOS the court and out of court costs of a suit in accordance with §771 ZPO, for which ELMOS is to receive compensation, then the customer shall be liable.
9.4. The processing or assembly of the ELMOS products is exclusively done on behalf of ELMOS. In the event of the ELMOS products being assembled with other products ELMOS does not own, ELMOS holds a co-ownership of the new reserved goods in a proportionate relationship of the invoice value of ELMOS reserved goods to the purchasing price of the other products which were assembled at the moment of assembly. The regulations pertaining to reserved goods shall also apply to the new reserved goods, in particular the prolonged reservation of property in accordance with item 9.6. Should the ELMOS reserved goods be mixed with other objects in a way which would not allow for a subsequent separation, then ELMOS holds a co-ownership of the new object in a proportionate relationship of the invoice value of the ELMOS reserved goods to the purchasing price of the other objects which were mixed at the time of the mixture.
9.5. The customer will keep in custody the ELMOS sole or co-ownership on behalf of ELMOS.
9.6. In the course of normal business transactions, the customer has the right to sell the ELMOS reserved goods or such which were created through processing or assembly or mixture. However, the customer automatically cedes all accounts receivable against third parties arising from this sale to ELMOS in the amount of the respective value, including VAT (prolonged reservation of property). Regardless of this cession, the customer remains authorized to collect the accounts receivable. The ELMOS entitlement to collect the accounts receivable is not affected by this. Nevertheless, ELMOS will only make use of these rights if the customer fails to fulfill the obligations towards ELMOS and payments become overdue. In this event, the customer is obliged to provide ELMOS with all data and documents necessary for the collection of the accounts receivable. On the explicit request of ELMOS, the customer will inform the third party debtors of this cession of accounts receivable.
9.7. On the request of the customer, ELMOS is obliged to return to the customer all securities which the customer provided ELMOS, provided that these are no longer necessary - this being not only on a temporary basis - for the securing of ELMOS claims, in particular if they exceed the value of the ELMOS claims, which remain to be secured and paid off, by more than 20%.

10. Place of Fulfilment, Court of Jurisdiction and Applicable Law

10.1 The place of fulfilment for all obligations of both parties resulting from this order is Dortmund.
10.2. The court of jurisdiction for all disputes, including all suits relating to cheques and drafts, is Dortmund. ELMOS reserves the right to file a suit against the buyer with their local court.
10.3. The laws of the Federal Republic of Germany apply for the legal relationship between ELMOS and the buyer. The UN Purchasing Law Agreement does not apply.