1. SCOPE OF APPLICATION, ACCEPTANCE, OTHER TERMS AND
CONDITIONS

1.1 These General Terms and Conditions of Purchase apply to any
and all purchase transactions between all of the above mentioned
companies of Obrist Group (hereinafter shortly referred to as
“Obrist”) and the contract partner – the latter hereinafter referred to
as “Supplier”.
1.2 The Supplier shall be deemed to have accepted these Terms and
Conditions of Purchase when the Supplier confirms and/or performs
any order placed by Obrist.
1.3 Any terms of the Supplier which are inconsistent with or deviate
from these Terms and Conditions of Purchase will not become part
of the contract even if Obrist fails to explicitly reject their inclusion.
If the Supplier does not agree with this regulation, they shall
immediately inform Obrist in writing about this fact. Any reference
to the Supplier’s general terms and conditions contained in any form
is hereby explicitly contradicted.

2. OFFERS; PURCHASE ORDERS

2.1 Obrist will not provide any consideration for the preparation of
offers, plans, cost estimates, etc. by the Customer, unless such was
explicitly agreed.
2.2 Purchase orders of Obrist shall only be valid if Obrist has placed
and confirmed them in writing.
2.3 The disclosure of purchase orders, in full or in part, to third
parties requires the prior written consent of Obrist. Any violation of
this provision shall entitle Obrist to a revocation of this purchase
order without replacement; any further claims of Obrist shall remain
unaffected.
2.4 The assignment of claims and/or the transfer of the collection of
claims against Obrist to third parties shall be excluded and shall
entitle Obrist to revoke the purchase order without replacement;
any further claims of Obrist shall remain unaffected thereby.

3. TERMS AND CONDITIONS OF DELIVERY AND SERVICE; TRANSFER
OF RISK

3.1 The goods or services shall be delivered in accordance with
separately listed specifications.
3.2 Unless otherwise agreed in writing, the delivery address and
place of fulfilment shall be Obrist GmbH Rheinstrasse 26-27, A-6890
Lustenau.
3.3 The dates of delivery or service specified by the Supplier –
hereinafter shortly referred to as “Deadlines” – shall be binding and
shall be deemed to be the time of receipt of the goods
Powertrain GmbH / Obrist Technologies GmbH
or rendering of the services at the agreed place of destination,
otherwise at the registered office of Obrist.
3.4 The above shall apply, mutatis mutandis, to deadlines specified
by Obrist against which no objection was raised by the Supplier.
3.5 If the compliance with the deadline is endangered, the Supplier
shall immediately inform Obrist thereof in writing (email suffices).
3.6 In case of the delay in delivery or service attributable to the
Supplier, Obrist reserves the right to claim a contractual penalty in
the amount of 1 % per started week of the delay, however a
maximum of 5 % of the entire order value. Obrist may also request
the liquidated damages if they do not explicitly reserve the right to
claim them upon receipt of the delivery or service. Any further
claims of Obrist, in particular those for damages, shall remain
unaffected.
3.7 Obrist’s legal and contractual claims under any default shall also
remain reserved in case Obrist accepts a postponement of the
Deadline.
3.8 The Supplier shall be obliged to use the fastest means of
transport available in case of any excess of the delivery deadline
attributable to them, regardless of the type of transport prescribed
in the purchase order, in order to mitigate the delay. The costs for
this transport shall be borne by the Supplier.
3.9 In case of a delay in delivery or service attributable to the
Supplier, Obrist shall be entitled to withdraw from the contract with
immediate effect after the expiry of a reasonable period of 14
calendar days.
3.10 If a fixed date was agreed, the contract shall be deemed to be
terminated when this date is exceeded, unless Obrist requests the
fulfilment of the contract within 14 days.
3.11 Partial deliveries and services made in advance shall be
prohibited, unless Obrist gives its written consent, this applies to the
exclusion of deliveries and services made within a max. period of 7
calendar days prior to the agreed Deadline. In case of such a
previous delivery, the payment terms shall commence only on the
contractually agreed Deadline.
3.12 Deliveries shall be made DDP (Incoterms 2010) to the agreed
place of destination, unless otherwise agreed. The packaging shall
be selected in a manner that a defect-free delivery can be ensured,
by observing the applicable packaging standards.
3.13 The period for incoming goods inspections by Obrist shall be 14
calendar days. The Supplier waives, insofar, the objection of delayed
notice of defects. That shall not apply to obvious defects;
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they shall be reported without delay. Payment shall not be
considered as an acceptance of the goods without reservations.
3.14 In case of a specifically agreed release of the delivery by Obrist,
Obrist shall be entitled to prolong the delivery period by up to 90
calendar days. The Supplier shall, in this case, be obliged to carefully
store the goods, free of charge, until it is released by Obrist.
3.15 If deliverables are delivered across borders, the Supplier shall
perform the customs clearance and Obrist shall receive a copy of all
export, customs and shipping documents together with the invoice
for the delivery.
3.16 The risk of an accidental destruction and the accidental
impairment of the deliverable shall only be transferred to Obrist
after a positively performed incoming goods inspection by Obrist.

4. QUALITY AND DOCUMENTATION

4.1 The goods to be delivered must comply with the applicable
domestic and foreign provisions, the accident prevention provisions,
the application regulations and guidelines of the VDE [German
Electrotechnology Association] regulations, the generally accepted
latest rules and standards of technology, and they must strictly be in
conformity with the documents underlying the purchase order and
known to the Supplier, such as drawings, descriptions, samples,
specifications, acceptance conditions, etc.
4.2 The Supplier shall perform a quality control which is suitable
according to type and scope, and complies with the latest state of
the art.
4.3 Complete maintenance, operating and service instructions shall
be provided in electronic form for equipment, instruments, plant
parts or plants, without a separate request and without any extra
costs.
4.4 The Supplier shall perform in accordance with a suitable quality
management system by observing the current ISO 9001, insofar as
that is reasonable to them, and must develop a zero-error
philosophy in the best possible manner.
4.5 The Supplier is hereby informed that Obrist is certified according
to ISO 9001.

5. PRICES, PAYMENT CONDITIONS AND DELIVERY QUANTITIES

5.1 Prices
a) The price agreed in the order or the purchase order shall be
binding.
b) Insofar as Obrist is obliged, on the basis of legal provisions or
based on instructions by authorities, to directly pay taxes for the
Supplier, Obrist will deduct the relevant tax amount from the
invoice amount, pay it directly to the competent financial
authorities and prepare a tax receipt for the Supplier. Insofar as the
Supplier has neither a registered office nor a tax-relevant
permanent establishment in the country of the place of fulfilment,
they will confirm that fact in writing to Obrist, at the latter’s request.
c) Unless otherwise provided for in writing, the price includes all
ancillary services of the Supplier or of the group of suppliers as well
as all ancillary costs (e.g. transport costs, including any transport-
and liability insurance, if any). The “group of suppliers” comprises
the Supplier, their sub-suppliers and their employees and
representatives.
5.2 Payment Terms
a) Unless otherwise agreed, the invoice shall be paid within 30
calendar days from the time of receipt of the complete delivery
(including acceptance, if any) by Obrist or a third party appointed by
Obrist. The place of business of Obrist shall be deemed to be the
place of fulfilment.
b) Insofar as Obrist makes payments prior to their maturity (see
item a), the Supplier will grant a discount to Obrist, aliquot to 3 % of
the total value. The discount may also be deducted if Obrist sets off
or withholds payment to an adequate amount based on defects in a
justified manner.
c) In case of a defective delivery or a delivery not in conformity with
the contract, Obrist may withhold the payment until the complete
fulfilment of the contract by the Supplier. Any advance payments
already made shall, in this case, be offsettable with other claims of
the Supplier. For any damage of all types which arises from a
delivery not in conformity with the contract, the Supplier shall owe
to Obrist not only the reimbursement of the costs but also the
replacement of lost profits.
d) Payments made by Obrist do not constitute an acknowledgement
of the deliveries as being in conformity with the contract.
e) The Supplier shall only be entitled to a right of set-off or retention
against counter-claims which have been found to be legally effective
or are undisputed. As a supplement to their legal rights of set-off,
Obrist shall also be entitled to set off against claims which Obrist has
against the Supplier or their affiliated companies.
5.3 Delivery quantities
Obrist shall not be obliged to accept or order any quantities of the
deliverables which go beyond the quantities explicitly and bindingly
ordered in the purchase order or otherwise. Obrist shall not be
liable for any costs caused by an early delivery, non-acceptance of
the delivery in case of excess delivery or any waiting periods arising
therefrom. In case of short deliveries, the Supplier shall be liable for
the costs arising therefrom and for the lost profits.

6. WARRANTY; PROPERTY RIGHTS OF THIRD PARTIES

6.1 During the term of the legal warranty, the Supplier shall
eliminate defects immediately at request and at their own expense.
6.2 All costs associated with the elimination of defects, such as e.g.
transport as well as costs of de-installation and installation shall be
borne by the Supplier. The limitation period for warranty claims will
be suspended for the period of the elimination of the defect until
the successful elimination of the damage. Any parts exchanged or
repaired during the elimination of defects shall be subject to a
warranty of 24 months from the completion of the exchange or
repair.
6.3 The place of fulfilment for the performance of the elimination of
the defect shall be prescribed by Obrist, insofar as that is reasonable
to the Supplier.
6.4 In those cases in which the Supplier fails to comply with their
warranty obligation within a reasonable grace period granted by
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Obrist and even in other specifically urgent cases, Obrist shall be
entitled to eliminate the damage or to have it eliminated by third
parties or, if that proves impossible, to obtain other replacement, at
the Supplier’s expense. The above shall apply, mutatis mutandis, in
those cases in which Obrist may waive the granting of a grace period
for justified reasons by weighing the interests of both parties or in
which such is unreasonable for Obrist. Any other legal provisions
shall remain in full force and effect.
6.5 The Supplier’s deliveries and services must be free of property
rights of third parties. The Supplier shall, in particular, be liable that
no property rights of third parties will be violated during the use of
the deliveries. The Supplier shall indemnify and hold Obrist harmless
against any claims of third parties due to violations of property
rights caused by them.
6.6 Insofar as Obrist should be liable for such damage as
manufacturer of the end product which are caused by defects in the
goods delivered or services rendered by the Supplier, the Supplier
shall indemnify and hold Obrist harmless against such a liability
caused by the Supplier and shall provide full compensation. The
same shall apply in case of any re-call action to be performed,
insofar as such is requested by law or the authorities.

7. MEANS OF PRODUCTION AND PRE-MATERIALS

7.1 Means of production which Obrist provides to the Supplier shall
be treated with care. Means of production which the Supplier
produces or procures and the costs of production (tool costs) of
which were paid by Obrist will be transferred to the ownership of
Obrist from the time of payment. Upon payment of at least 50 % of
the costs of manufacturing (tool costs), Obrist shall be entitled to a
transfer of the pro-rated co-ownership. All means of production
shall be kept in a condition ready to be used and available for Obrist
for a period of 10 years from the last date of production and must
be identified with an undeletable label stating “Property (co-
ownership) of Obrist Group”. If such a storage is impossible or
unreasonable for the Supplier, they shall immediately notify Obrist
thereof in writing, so that deviating measures can be agreed upon.
The means of production shall be provided to Obrist during the
storage period mentioned above upon request and without a right
of retention. Upon hand-over of the affected means of production
to Obrist, the Supplier’s storage obligation shall end.
7.2 In case of damage, loss or destruction of pre-materials (semi-
finished products, castings, pre-processed parts, etc.) provided by
Obrist, the Supplier shall reimburse to Obrist their replacement
costs.

8. TERMINATION

In case of a default of delivery or service, Obrist shall be entitled to a
right of withdrawal in accordance with Art. 3.9 of these General
Terms and Conditions of Purchase. The following additional
regulations on termination shall apply to services which go beyond a
single transaction:
8.1 Extraordinary termination
Obrist may terminate the complete contract, at any time, in full or in
part, and without complying with a notice period, if Obrist cannot
reasonably be expected to continue the contractual relationship by
taking into account all circumstances which apply to the individual
case and by weighing the mutual interests. Obrist shall be entitled to
such a right of termination, in particular, if the Supplier violates one
or several essential obligations under the present General Terms
and Conditions of Purchase and fails to remedy the violation (if such
can be remedied) within a reasonable period after receipt of a
relevant
complaint
from
Obrist.
8.2 Termination due to insolvency
A reason for a termination shall also be deemed to exist if the
Supplier ceases their business operation or their payments, files for
insolvency proceedings or comparable legal proceedings or if such
proceedings are opened or if the opening of such proceedings is
rejected due to lack of assets.
8.3 Duties in case of a termination
Unless otherwise agreed in each individual case, the Supplier will,
after the termination
a) immediately cease all work under the contract;
b) not conclude any further sub-orders and no contracts on the
purchase of (raw) materials, services or operating materials, unless
that is necessary in view of the deliverables which are not covered
by the termination; and
c) take all other reasonable measures which might contribute to a
reduction of the consequential costs of the termination.

9. INSURANCE

9.1 The Supplier shall be obliged to maintain all contractually agreed
and/or legally prescribed insurances, at their own expense. This
obligation shall apply to the expiry of the calendar year following the
occurrence of the limitation of warranty claims for the deliverables
which were last delivered under this contract.
The following insurances must exist, in particular:
a) a vehicle liability insurance for all vehicles used for rendering the
services under the contract (i.e. including trucks) with a sum
insured of no less than EUR 2 million per event of damage and EUR
5 million per year;
b) an employer’s liability insurance and a worker’s compensation
insurance with a sum insured of no less than EUR 2.5 million each
per event of damage and EUR 5 million per year;
c) a property insurance for the reimbursement of all material assets
which are owned by the Supplier, that are rented or leased by
them or that are otherwise used in connection with the
performance of the contract by the Supplier and for all material
assets of Obrist which are in the custody of the Supplier;
d) a product liability insurance with a sum insured of no less than
EUR 2.5 million per event of damage and EUR 5 million per year;
and
e) an environmental liability insurance with a sum insured of no less
than EUR 5 million per event of damage and EUR 10 million per
year.
9.2 All insurances must provide that
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a) the relevant cover exists without any additional conditions and
also in the case of a mutual liability;
b) Obrist and their affiliated companies as well as any companies
acting jointly with Obrist and their executive bodies, managing
directors, other representatives and employees or staff members
(“GE Parties”) are identified as additional beneficiaries or payment
beneficiaries in case of loss; and
c) a waiver of recourse on the part of the insurance in favour of the
GE Parties for all damage which is covered by the relevant
insurances.

10. RIGHTS TO DOCUMENTS; CONFIDENTIALITY

10.1 All drawings, calculations and the like provided to the Supplier
for placing offers or for the performance of purchase orders shall
remain the property of Obrist and shall be returned to Obrist upon
submission of the offer or the performance of the purchase order.
They may not be reproduced nor be disclosed to any third parties
without the prior written consent of Obrist.
10.2 The Supplier shall treat as business secrets and keep in strict
confidence the business relationship with Obrist, purchase orders,
deliveries and/or services resulting therefrom as well as any and all
technical and commercial documents and facilities associated
therewith. They shall protect these business secrets against any
access by unauthorised parties and must not disclose them to third
parties and/or utilise them in any other way, unless Obrist has given
its explicit prior consent in writing. If Obrist has allowed the
placement of sub-orders, the Supplier shall commit their sub-
suppliers accordingly. The Supplier shall be liable for any misconduct
of their sub-suppliers like for their own.

11. INDUSTRIAL PROPERTY RIGHTS AND COPYRIGHT

11.1 In case of development orders, Obrist shall solely be entitled to
the right to the intellectual property (“IP”) arising from the order
(this means, in particular, any and all knowledge, performances,
parameters, know-how, inventions, developed processes, objects,
programs as well as other results and materials protected by
copyright, including all records, descriptions, experimental
arrangements, models and construction samples [prototypes]
prepared in this connection, in all development and manufacturing
phases, regardless of whether they are eligible for protection).
11.2 If the Supplier develops a patentable idea in the course of a
development order, the Supplier shall notify Obrist, in writing, about
this fact. Obrist shall – while maintaining the designation of the
inventor – be entitled to file a patent regarding the patentable idea
alone and to possess and use this patent registration and/or this
patent alone. A possible inventor’s bonus has to be borne by the
Supplier.

12. EXPORT RESTRICTIONS; DECLARATION OF THE SUPPLIER

12.1 The Supplier shall be obliged to inform Obrist, without a
request and as soon as possible, about any goods-related
restrictions for (re-)exports of the goods delivered by them or to be
delivered by them in accordance with the European and/or US
export and/or customs provisions and the export and/or customs
provisions of the country of origin of the goods. For this purpose,
they will provide at least the following information in their offers
and order confirmations on individual goods positions:
a) the number of the Common Military List of the EU and of the dual
use goods list,
b) for US goods the ECCN (Export Control Classification Number)
according to the US Export Administration Regulation (EAR)
c) for US defence products (so-called ITAR goods), the USML (United
States Munitions List) category,
d) information on the non-preferential origin of their goods and
their parts,
e) information on those goods which were manufactured based on
controlled US technology and/or which contain controlled US
components.
The Supplier shall also be obliged to notify Obrist, in writing (in
particular the purchaser specified on the purchase order), of all
other foreign trade data upon request and notify Obrist, in writing,
about all changes of the above data, without the need for a request.
12.2 The legally binding take-over of re-export restrictions from the
title of the technology transfer shall be restricted to goods for which
an export authorisation is demonstrably necessary in the country of
delivery (the Export Administration Regulation, as amended, of the
US Department of Commerce shall apply to the USA) which are
additionally identified in the delivery documents and for which the
Supplier notifies that explicitly in the offers and order confirmations.
12.3 Suppliers based in the EU shall be obliged to transfer to Obrist
the original of the (long-term or) supplier declaration for goods with
preferential origin in accordance with Regulation (EC) no.
1207/2001, as amended, within one calendar week, after a relevant
request. If the Supplier fails to comply with the above obligation or if
their declaration fails to comply with the legal provisions, they will
indemnify and hold Obrist harmless against any disadvantageous
consequences
arising
therefrom.

13. FINAL PROVISIONS

13.1 Amendments and supplements shall be made in writing. That
shall also apply to the cancellation of this clause.
13.2 If one or several of the provisions of these Terms and
Conditions of Purchase and/or of any other contracts concluded
between the parties are or become ineffective, or if they prove to
contain a loophole, the other provisions shall remain in full force
and effect and the ineffective provisions shall be replaced and the
loophole shall be filled by an adequate, permissible provision which
the contract parties would have wanted or should have wanted
according to the sense and purpose of the conditions, if they had
known the ineffectiveness or loophole.
13.3 The exclusive place of jurisdiction for al disputes arising from or
in connection with the contractual relationship shall be at the court
with competent jurisdiction for Lustenau. Obrist shall, however, also
be entitled to sue at the registered office of the Supplier.
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13.4 The parties agree that any and all legal relations arising from
this contractual relationship shall be governed by the laws of the
Republic of Austria, to the exclusion of the UN Convention on
Contracts for the International Sale of Goods (CISG).
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