GENERAL TERMS AND CONDITIONS OF DELIVERY AND SERVICE

I.  Scope

  1. These General Terms and Conditions of Delivery and Service dated April 25, 2012 (hereinafter the "Terms") will govern and apply to all manufacturing, installations, deliveries, goods, repairs and/or other services by Glasproduktions Services GmbH (hereinafter referred to as "GPS") to Customer even if GPS in the course of ongoing transactions, does not expressly refer to these Terms in future contractual arrangements. The application of any deviating or additional terms of Customer is excluded, even if not expressly rejected by GPS.
  2. Agents and sales companies are not authorized to contract in their own names for goods or services to be provided by GPS.  Such goods or services will be covered by these Terms only and only when signed by an authorized representative of GPS.

II. Written Contract

  1. Proposals and quotations by GPS are non-binding and shall not become effective until an authorized representative of GPS has given written confirmation of an order. All rights and duties of the parties shall be governed solely by the contents of the confirmation of order, these Terms and the applicable law. Any terms or conditions from Customer are expressly rejected and are supplanted in their entirety by these Terms.  These Terms will take precedence over any conflicting Terms of an Order.  Oral agreements made before, during or after the conclusion of a contract shall require GPS written confirmation in order to become valid.
  2. The information contained in GPS' marketing material, sales catalogues or offers made by GPS - such as dimensions, capacities, weights, preference ratings and other data, including the date and duration of installation, of repairs or of service are approximate only and will not bind GPS unless expressly stated otherwise in a writing signed by an authorized GPS representative.
  3. The issuance of information, advice, approvals, instructions or cost projections by GPS's sales personnel or other representatives shall be deemed expressions of personal opinion only and shall not affect GPS's and Customer's rights and obligations hereunder unless in writing with the explicit statement of intention to be bound by both an authorized representative of GPS and Customer.

III. Engineering Customer is responsible for the choice of product and for determining whether (according to the specifications) GPS's products and/or services meet Customer's needs. Unless otherwise stated, GPS does not warrant the compatibility of its products with other elements of production (such as products of other manufacturers, special raw materials, etc.).

IV. Prices, Terms of Payment, Retention of Title

  1. Should the parties not have agreed on a particular price for a GPS delivery, the price in the GPS price list valid on the date of delivery shall apply.
  2. Unless a fixed price for installation, repair, services or other work is agreed to by GPS as an exception, the price for such service shall be governed by the contents of the confirmation of order by GPS, taking into account the time spent and the costs of travel and accommodation. Should there have been no reference to price in the confirmation of order, the GPS price list on the date of performance of the service shall apply. All costs for travel, meals and accommodation shall be charged to Customer; travel time shall be deemed to be working time.
  3. All GPS prices are EXW and exclusive of Value Added Tax or any other applicable sales tax, levy or duty, customs duties or charges or possible consular fees (including authentication fees which may be imposed by some countries legislations which are hereinafter referred to as Taxes).  All Taxes, except for those taxes for the gross profits or net proceeds of GPS, will be the responsibility of Customer.
  4. GPS reserves the right to change its prices appropriately if costs rise or fall after the contract has been concluded, especially due to changes in material price changes or wages costs. Should any changes in costs occur up until the day of performance/delivery of the services/products, GPS will have the right to adjust the prices provided that the service is rendered or the products are delivered more than 12 (twelve) months following the conclusion of the contract concerned.
  5. Each invoice will be paid in full within 30 days of the date of the invoice, without right of deduction, counterclaim of set-off in the agreed currency. Payments by Customer shall be deemed not to have been made until GPS account has been fully and irrevocably credited whatever the means of payment used.
  6. Late payment is subject to the principles of Article 3 of European Directive 2000/35EC of 29 June 2000 on combating late payment in commercial transactions, which is to the following effect: The credit period is 30 days from the date of receipt of the invoice. Penalty interest is due without a prior reminder notice. Penalty interest is 7% plus the interest rate applied by the European Central Bank to its most recent main refinancing facility carried out before the first calendar day of the half-year in question. GPS is entitled to compensation for recovery costs.
  7. Bank Checks shall only be accepted upon special arrangement in a signed writing between the parties and free of any expenses and bank charges for GPS. Otherwise, all payments will be made to GPS by irrevocable wire to GPS' designated account. A copy of the confirmation of such wire will be sent by Customer to GPS. All expense for wiring the funds will be at Customer's expense.
  8. If GPS becomes aware of or reasonably anticipates, following the conclusion of any contract, a material deterioration in Customer's financial situation, GPS shall be entitled to perform any outstanding deliveries or services only against prepayment or the rendering of security. If such prepayment or security has not been received timely by GPS, GPS may suspend or terminate any and all of its contracts with Customer after having notified the Customer in writing and GPS will retain all rights in equity and law against Customer.
  9. The Products shall remain the property of GPS until paid for in full to the extent that such retention of title is valid under the applicable law. Customer shall at the request of GPS assist it in taking any measures necessary to protect GPS's title to the product in the country concerned and will conspicuously mark GPS product as "Owned by GPS" and will separate it from Customer's goods. The retention of title shall not affect the passing of risk under section 5.7.

V.   Delivery, Transfer of Risk

  1. Delivery dates and periods, installation or repair dates and periods, and other dates and periods of performance are binding only if they have been confirmed by an authorized representative of GPS in writing and Customer has communicated or provided the information and documents required for executing such deliveries or services and has duly performed its obligations and responsibilities. Delivery and performance periods shall commence on the date of the confirmation of order or upon receipt of the agreed prepayment by GPS. In the event of changed or supplemental orders or in the event of delayed payment, these periods shall be extended accordingly.
  2. Customer must timely carry out all its contractual obligations and duties, if Customer fails to do so, without waiving any other right or remedy GPS has under these Terms, law or equity, Customer extends delivery and performance periods accordingly. Customer is particularly obligated with respect to installation work, repairs and other services by GPS to ensure that the work can promptly commence following the arrival of the GPS technicians and can be conducted without interruption, unless an interruption due to working hours or scheduling has been agreed to between the parties in writing.
  3. If delays are due to unforeseeable events or  events for which GPS is not responsible such as Force Majeure, fire, acts of God, war, government directives, requisition, seizure, embargo, industrial disputes, delays in deliveries by subcontractors caused by any circumstances referred to in this clause, labor disputes, including those affecting suppliers, and other events which are out of the reasonable control of GPS will release GPS from its obligation to render timely delivery or performance for the duration of such events. The periods of delivery and performance shall be extended by the duration of such disturbance; Customer shall be informed in good time and in an appropriate manner of the occurrence of such disturbance. GPS shall inform the Customer as soon as possible if delivery dates must be exceeded or if delivery is impossible. If the end of the disturbance is not foreseeable or if it lasts for more than three (3) months, either party shall be entitled to terminate the contract without liability for any resulting loss. In case of termination GPS shall be paid for all in process work and materials ordered or received through such effective  termination date as well as for all equipment actually delivered.
  4. If GPS is in default of performance for more than two (2) consecutive months and such default is not in whole or in part due to any event or reason described in section 5.3 above, Customer after paying GPS for all completed and in progress works shall be entitled to terminate the contract after a reasonable period of grace has expired. The grace period shall not be less than 20% of the lead time originally available to GPS. Customer has no further rights except in case of GPS's gross negligence or intentional conduct. If a penalty for late delivery has been expressly agreed upon, such amount shall constitute liquidated damages and no additional compensation shall be due, irrespective of the amount of actual damage.
  5. If Customer fails to take delivery or is in default of payment or is otherwise in breach of any of its duties under these Terms or any other agreement with GPS, including without limitation Customer's duty to co-operate with GPS, GPS shall have the right to terminate these Terms or suspend GPS' obligations hereunder, in addition to seeking all rights and remedies due to GPS under these Terms and in equity and law.  Further, GPS will be entitled to warehouse the goods in a reasonable manner at Customer's risk and expense. Customer is liable for all costs caused by its delay.
  6. GPS may make partial delivery, and each delivery may be treated separately for the purpose of invoicing.
  7. Risk of loss shall pass to Customer at GPS facility on delivery of the shipment to the transport operator unless expressly stated otherwise in a writing signed by an authorized GPS representative. Should the delivery of the shipment be delayed on grounds for which Customer is responsible, risk of loss shall pass on the date GPS issues notice that the shipment is ready for delivery to Customer.

VI.  Examination

  1. Customer shall be obligated to inspect the products immediately on delivery and all service immediately following completion of such services.
  2. Customer shall notify GPS, in a detailed writing, of any defect immediately after discovery, but in no event later than three working days after delivery or completion of service as applicable.  If Customer does not notice GPS of claimed defects in writing within the applicable period as described herein, all rights to claim any such defect in delivery of goods or services will be waived by the Customer.
  3. If GPS inspects or examines its own products while under no contractual obligation to do so, Customer may not infer from such inspection or examination that GPS has any knowledge of undiscovered defects.

VII. Intellectual Property and Confidentiality

  1. GPS know-how such as drawings, software, technical documents (including assembly and subassembly drawings, manuals and mold design data), submitted to Customer prior or subsequent to the date of the contract governed by these Terms shall remain the exclusive property of GPS and may not, without GPS's express written consent, be copied, reproduced, transmitted, or communicated to a third party, and may be used only for installation, commissioning, operation and maintenance within the limits of normal use. GPS grants Customer a non-transferable, non-exclusive, royalty-free license to use such GPS know-how to install, operate and maintain GPS equipment.
  2. Software supplied with GPS products, whether provided in transportable media or embedded within the products, is GPS's copyrighted property. The ownership of the software shall at all times remain with GPS. Customer is granted a fully revocable, non-exclusive, non-transferable right to use the software only in the equipment GPS designates. Unless being supplied with associated products, no software, regardless of the form in which it is embodied when received by Customer, shall be made available to others without GPS's prior written authorization. Customer may duplicate software solely for the purpose of creating archival or backup copies. Customer shall make no attempt to decompile or otherwise reverse engineer the software. In the event Customer makes an unauthorized use, duplication or transfer of any software, GPS may terminate and revoke the rights granted to Customer under this section and Customer shall, upon and in accordance with GPS's request, return or destroy all copies of the software then in Customer's possession. This right to terminate and revoke licenses granted hereunder are in addition to GPS's other rights and remedies in contract, law, and/or equity for unauthorized use, duplication or transfer, including GPS's right to seek damages for same.
  3. Customer's obligations set forth in sections 7.1 and 7.2 shall survive any termination or rescission.

VIII.  Warranty, Duty to Inspect Deliveries

  1. GPS warrants that products delivered conform to the specifications. Only a discrepancy between the products and the specifications constitutes a defect. The warranty period (limitation period) is one year beginning at date of delivery (section 5.7).
  2. No warranty shall be effective unless the Customer complies with the operating instructions, security instructions, maintenance instructions and all other instructions in accordance with the user documentation.
  3. Every change of order is subject to approval by GPS. Any change leading to an increase in cost to GPS will result in an additional charge to Customer according to GPS's price list. GPS is under no obligation to predict the technical effects or consequences of a change of order, and all responsibility for changes is assumed by Customer.
  4. For every notice of defect GPS will have the right to inspect and test the product in question. GPS may also demand from Customer that such product be returned to GPS at GPS's expense. Should the notice of defect prove to be unjustified, Customer shall be obligated to immediately reimburse GPS for all expenses incurred (including, but not limited to, costs of travel, technician's time and shipping costs).
  5. In the event that products delivered are defective, GPS shall be entitled, at its option, to repair the defect or to deliver a replacement free of charge. Parts replaced by GPS will become the property of GPS.
  6. Customer shall allow GPS the opportunity and reasonable time required to repair the defect or deliver a replacement. Customer shall have the right to remedy the defect itself or through a third party and demand reimbursement of necessary expenses from GPS under the following circumstance only: 1) in emergencies where plant safety is endangered; to avert substantially greater damage; or 2) where GPS gives written approval for repair of the defect through the Customer itself or a through a third party. In such case where Customer or through the use of a third party effects repair, reimbursement by GPS and damage to Customer will be limited to the amount of cost GPS would have reasonable incurred if it had repaired the defect itself.
  7. GPS assumes no liability for damage caused by inappropriate or improper use, faulty installation, faulty initial operation, faulty modifications or repair work by Customer or a third party, normal wear and tear, faulty or careless treatment, improper maintenance, inappropriate resources used by Customer or a third party, or faulty electromechanical or electrical influences. Insufficient maintenance will be presumed if maintenance records are not properly kept or if Customer refuses to submit maintenance records for inspection. If a replacement part which is not an authentic GPS product is integrated into an GPS product without GPS's written consent, any failure of or any damage associated with such GPS product shall be presumed to have been caused by the unauthorized replacement part, unless Customer proves beyond reasonable doubt and at Customer's own expense, that the failure or damage is entirely unrelated to such replacement part. Moreover, GPS assumes no liability for damages which are attributable to design and/or technical specifications and/or requirements of the Customer or specifications and/or requirements of the Customer relating to use of a certain material.
  8. Should repair or the defect or replacement delivery be unsuccessful or impossible for GPS within a reasonable period, Customer may demand compensation for reduction in value. There is no right or rescission of the contract, unless such defects have rendered the products useless despite repair works. GPS is not liable for any loss or damage resulting from defects (including but not limited to loss of production, loss of profits) unless caused by GPS gross negligence or intentional conduct.
  9. Remedial work or replacement delivery will not extend or cause a new warranty period to commence but shall extend the original warranty period by the duration of any suspension of operations caused by such work or delivery. Replacement parts carry no separate warranty.
  10. All further claims shall be excluded except as otherwise provided in section 10. In no event will GPS be liable for defects unless it has received notice thereof within the warranty period.

IX.  Warranty for Installation Work, Repairs and Other Services

  1. GPS warrants its workmanship of the machines provided by GPS hereunder.
  2. In the event of a workmanship defect caused by GPS, remedial work will be performed free of charge. GPS is not liable for loss or damage resulting from defects of installation, repairs or other services unless caused by GPS's gross negligence or intentional misconduct and in such case damages will be limited to remedial work and will be subject to the damages limitations under section 8 above and section 10 below.
  3. All further claims shall be excluded except as otherwise expressly stated in under these Terms.

 
X.   Liability

  1. GPS shall be liable without limitation for damages based on willful misconduct, for written warranty, as well as for damages arising out of injury to life, body or health. The liability pursuant to the applicable compulsory product liability law shall remain unaffected.
  2. In all other cases the liability of GPS for any legal reason whatsoever, including default shall be limited with thirty percent (30%) of the agreed remuneration.
  3. Without prejudice of liability set forth in article 10.1 GPS shall not be liable for financial loss or consequential damage, for profit loss, production shortfall, breakdown, contractual claims of third parties, loss of use, financing costs, interest loss, claims due to a covering purchase as well as for loss or data, information and programs due to a software error.
  4. Subject to compulsory liability (article 10.1) and without prejudice to any liability for defect, any liability claim shall expire within a time limit of twelve (12) months following the day of appearance and knowledge due to a grossly negligent conduct on the part of the costumer.
  5. Any further liability of GPS shall be excluded.
  6. Customer is obligated to undertake appropriate measures to avert and minimize damage.
  7. GPS is not liable for damage caused by support personnel supplied by Customer unless the support personnel caused such damage because of express instructions by GPS technicians; in such case GPS's liability shall be governed by sections 9, 10.1, 10.2 and 10.3.
  8. Should GPS technicians, at Customer's special request, support Customer in transporting parts to the place of installation or repair or other service, they shall be acting as agents of Customer. GPS assumes no liability in such case.

XI.  Consequences of Termination or Rescission Should GPS terminate or rescind on grounds for which Customer is responsible, GPS may demand compensation for loss and for expenses incurred as well as retain all rights in equity and law to assert further claims.

XII. Indemnity

  1. Should Customer sell the subject of delivery in an unchanged state or following union, mixture or confusion with other goods, GPS shall be held harmless by Customer from product liability claims of third parties.
  2. Customer shall indemnify and hold GPS harmless against any and all claims of third parties regardless of the nature of such claim in connection with or related to the performance of these Terms, unless such claim is proven to be caused solely by gross negligence or willful misconduct of GPS.

XIII. Patent Disputes

  1. Both parties shall co-operate in patent disputes caused by alleged infringement of patents by GPS's products. Subject to the limitations in section 13.2, GPS shall indemnify the Customer for claims for compensation up to the amount of the purchase price of the products or of those parts of the products that are directly the subject of the action for infringement of patent. The Customer waives all further claims.
  2. Should Customer prescribe how GPS is to produce the products to be delivered by it through specific instructions, information, documents, drafts or drawings, Customer shall warrant to GPS that no third-party rights such as patents, utility models or other proprietary rights or copyrights are infringed. Customer shall indemnify GPS against all claims by third parties asserted against GPS due to such infringements

XIV.  Labor Standards

  1. GPS represents that, with respect to the production of the articles and/or the performance of the services covered by these Terms, GPS fully complies with the applicable labor standards in accordance with the Saint Gobain's General Principles of Conduct and Action published at: www.saintgobain.com.

XV.  General Provisions

  1. Amendments, supplements, or any side agreement these Terms (including this provision) must be in writing and signed by an authorized representative of each GPS and Customer.
  2. Should a provision of these Terms (including sections 15.3 and 15.5) be fully or partially invalid, the validity of the remaining provisions shall not be affected. The invalid provision shall be deemed to have been replaced by such valid provision as comes closest to having the economic effect of the invalid provision.
  3. Customer is not entitled to assign its claims under these Terms.
  4. Any and all disputes between the parties arising under or in any way related to a contract governed by these Terms will be subject to the exclusive jurisdiction of the competent courts in Germany.
  5. These terms and all rights and duties of the parties under or in any way related to the contract of which they form part shall be governed and interpreted according to the laws of Germany to the exclusion of conflict of law's provisions as well as the application of the United Nations Convention on the International Sale of Goods (CISG).
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