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Terms and Conditions of Purchase Umdasch Digital Retail GmbH, Industriezeile 35 / Top 5, A-4020 Linz OA-DR-002-ENG-01

1)

General information

1.1 These Terms and Conditions of Purchase (hereinafter “TCP”) of Umdasch Digital Retail Retail GmbH (hereinafter “Umdasch Digital Retail”) form an integral part of all contracts concluded with Contracting Parties (hereinafter “CP”) from which Umdasch Digital Retail acquires or purchases goods or services of any kind, in particular the provision of services, whether for itself or for forwarding to third parties - with or without further adaptation or processing by Umdasch Digital Retail. 1.2 Amendments or ancillary agreements shall be made in writing. This also applies to any deviation from this written form requirement. 1.3 Only orders or purchase orders made in writing are valid; accordingly, verbal or telephone agreements shall be considered binding only if they are confirmed by Umdasch Digital Retail in writing. 1.4 If any provision of these TCP is or becomes invalid, this shall not affect the validity of the remaining provisions. 1.5 Execution of the order by Umdasch Digital Retail shall be deemed as recognition of our terms and conditions. By taking delivery of the ordered goods or services, the supplier acknowledges that our Terms and Conditions of Purchase shall apply exclusively as contractual content. Umdasch Digital Retail shall not be bound by the General Terms and Conditions of the CP. 1.6 The Conditions of Sale and Delivery of the CP shall not be binding upon Umdasch Digital Retail, even if they are not expressly rejected. 2)

2.1 2.2 2.3 3)

Delivery

Transport and packaging

5)

Billing

6)

Payment

4.1 Transport to and unloading at the respective point of reception, which is indicated in the order, shall take place at the expense and risk of the seller; this shall also apply if deliveries are agreed as freight collect. In any event, the supplier shall be liable for damage and losses arising from the transport and unloading of the goods. 4.2 Unless agreed otherwise, shipments by post shall be sent to the point of reception specified by Umdasch Digital Retail. 4.3 The delivery shall be packed appropriately for the articles in question and the mode of transport, in particular in accordance with the delivery regulations of Umdasch Digital Retail. 4.4 Statutory provisions on the disposal of packaging materials shall be followed by the supplier. Upon request, the supplier shall provide evidence of a licence agreement with pertinent service providers (e.g. ARA, green dot). The invoice must contain the number, date and reference of the order and be suitable for the deduction of input tax. 5.2 The term and duration of the payment period commence at the earliest upon receipt of the issued invoice at Umdasch Digital Retail. 5.3 Partial invoices will be accepted only if they have been agreed on a case-by-case basis.

6.2 6.3 6.4

6.5 6.6

7.1

7.2

7.3 7.4

All prices are exclusive of value added tax, and are inclusive of any assembly, packaging, insurance, delivery free of charge to the respective point of receipt, and unloading, and are fixed prices which shall not be subject to increases for any reason whatsoever. Offers, quotations, visits, consultation and planning services are free for Umdasch Digital Retail unless agreed otherwise. Offers, quotations or other documents containing price information shall have a period of validity of at least 3 (three) months from the date on which they are sent.

4)

6.1

7)

Price

3.1 Delivery deadlines shall be strictly observed. The goods shall arrive at the agreed destination by the agreed delivery deadline. Any lead time shall commence on the date of the order. 3.2 Unless contractually agreed otherwise, an amount of 2% (two per cent) of the order value shall be deducted from the final invoice of the CP for each working day of delay for late deliveries that are caused by the CP, subject to a maximum of 20% (twenty per cent) of the order value. The assertion of claims for compensation in excess of the stipulated penalty or other claims, such as claims for injunctive relief, shall remain unaffected. Payment of the contractual penalty shall not release the CP from its obligations under this contract. 3.3 Failure to comply with the delivery period shall entitle Umdasch Digital Retail to withdraw from the contract with immediate effect. In each instance, Umdasch Digital Retail is entitled to cover the goods delivered late at the cost of the seller and to claim any other damage. 3.4 Deliveries made by the CP directly to the final customer shall under no circumstances contain an invoice or other documents showing the price of the goods, delivery costs or similar information. In the event of a breach, Umdasch Digital Retail is entitled to demand 15% (fifteen per cent) of the order value as a penalty for each violation. This penalty cannot be offset against the payment of penalties due to late delivery. The assertion of claims for compensation in excess of the stipulated penalty or other claims, such as claims for injunctive relief, shall remain unaffected. Payment of the contractual penalty shall not release the CP from its obligations under this contract.

5.1

6.7 The CP and Umdasch Digital Retail hereby agree that all deliveries to Umdasch Digital Retail shall be made free from reservation of title and other encumbrances.

Unless agreed otherwise, invoices of the CP for completed deliveries or services shall be due for payment when they have been received by Umdasch Digital Retail, unless the delivery/service of the CP is not in accordance with the contract or has been complained about by Umdasch Digital Retail. Unless use is made of a right to offsetting, Umdasch Digital Retail has the right, at its option, to pay the invoice in full within 90 days of receipt of an auditable invoice, or within 45 days with a deduction of 3% discount. Payment represents neither an acknowledgement of the delivery nor a waiver of Umdasch Digital Retail’s rights. There shall be no payment of default interest or compensation due to late payment. Umdasch Digital Retail is entitled to offset outstanding claims that Umdasch Digital Retail or a company affiliated with Umdasch Digital Retail has in respect of the CP against its own claims arising from the delivery or service. The CP also agrees to a full or partial transfer of the rights and obligations of Umdasch Digital Retail under this contract to a third party; in this regard, the CP shall renounce any right to objection pursuant to Art. 38 (2) Austrian Commercial Code (UGB). The CP is not entitled to transfer rights and obligations arising from this contract in full or in part to third parties or to affiliated companies without first obtaining the written consent of Umdasch Digital Retail.

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7.5 7.6

7.7

7.8

Warranty and guarantee

The CP is liable for ensuring that its contractual services - in particular deliveries of goods, work performed in the form of machining, processing or manufacturing products and services of whatever kind - fulfil the purpose that the CP knew or should have known about. The CP is required to clarify any doubts over the intended purpose by making enquiries to Umdasch Digital Retail. In particular, the CP therefore also warrants that these products can be used for the purpose intended by third parties in the case of the paid or unpaid forwarding of products to third parties for which the CP has rendered contractual services of any kind whatsoever. The CP shall furthermore use the latest security software to verify software and data prior to dispatch in order to avoid any damage at Umdasch Digital Retail or a customer. The CP guarantees that its delivery shall not infringe any third-party rights (e.g. licence rights, including for open-source applications) and shall indemnify and hold Umdasch Digital Retail harmless in this regard. Software and source codes must be provided with sufficient documentation in respect of delivery in accordance with this contract. In addition, the CP guarantees the proper performance of the delivery (service) and compliance with all pertinent laws, standards and other regulations and requirements. For delivered goods and rendered services, the CP shall provide a warranty of 24 months from the date of transfer/acceptance including 12 months full guarantee, which shall cover all faults and defects that arise within the guarantee period. Within the scope of this warranty and guarantee, the CP shall also make good all damage suffered by Umdasch Digital Retail as a consequence of a faulty delivery/service without the need for any proof of culpability. The CP shall also be liable for the culpability of its suppliers. If Umdasch Digital Retail provides the CP with workers - in particular for machining, assembly work, carrying out a test run or for unloading - these workers shall be subject to the instructions of the CP and deemed its vicarious agents, for whose mistakes the CP and not Umdasch Digital Retail shall be held responsible. The delivery (service) shall be accepted by means of an inspection at the place of use designated by Umdasch Digital Retail and/or upon deployment or use of the goods. The provisions of Art. 377 et seq. Austrian Commercial Code (UGB) shall not apply. In the event of a warranty claim, without prejudice to other legal options, Umdasch Digital Retail shall have the right to request at its option a free replacement, change, free rectification of the defect or a reasonable price reduction, or to have the fault rectified by third parties at the expense of the CP. The cost of all journey times, inspections and transportation shall be borne by the CP. The guarantee and warranty period starts again following full corrective action, including for the original defect-free parts of the delivery (service) supplied. If a grace period is required on the basis of statutory provisions, the CP shall be granted a reasonable grace period in which to make improvements, exchange the goods, etc. The CP shall send Umdasch Digital Retail any storage, care and operating instructions in German with the delivery without being requested to do so, failing which the CP shall be liable to Umdasch Digital Retail for any losses caused through ignorance of this provision.

8)

Liability of the CP

10)

Accident avoidance

11)

Place of performance and legal venue

8.1 There shall be no restrictions or exclusions in respect of claims for compensation that Umdasch Digital Retail is entitled to bring against the CP for any legal reason whatsoever, in particular on the basis of the Product Liability Act, Federal Law Gazette No. 99/1988 as amended. 8.2 The CP undertakes to indemnify and hold Umdasch Digital Retail harmless in respect of all product liability claims brought by third parties for a period of 12 years from the date of delivery, and on request to provide Umdasch Digital Retail with the name of the respective manufacturer, importer or the party that delivered the product to it, and to make all purposeful documents for the defence of third-party product liability claims available in good time. 9) Acceptance and transfer of risk 9.1 Acceptance of the delivered object by Umdasch Digital Retail shall, without exception, take place without prejudice and in such a way that Umdasch Digital Retail accepts this object in the factory or at another destination (e.g. delivery to the final customer) through its representatives. If the supplier still has to machine or assemble the delivered object, Umdasch Digital Retail shall accept it only once this work is complete. If the delivered object is required to undergo a test run, acceptance shall take place only after the test run has been performed. If the delivered object arrives in the custody of Umdasch Digital Retail prior to assembly or prior to its arrival at the destination - e.g. because Umdasch Digital Retail organised the transport - this shall not mean that Umdasch Digital Retail has accepted the delivered object. 9.2 The risk of damage, loss and destruction of the delivered object or parts therefore shall be transferred to Umdasch Digital Retail only upon acceptance of the same. This shall also apply if the delivery was organised by Umdasch Digital Retail or took place for the account of Umdasch Digital Retail. 10.1 If the CP is to render its service in the area of Umdasch Digital Retail, it shall ensure that all accident avoidance regulations are complied with; the CP shall be liable to Umdasch Digital Retail for damage caused by this and also due to failure to comply with the protection provisions of Umdasch Digital Retail. 10.2 If Umdasch Digital Retail provides the CP with workers, in particular for machining, assembly, carrying out the test run, commissioning, training or unloading, these shall be subject to the instructions of the CP and deemed to be its vicarious agents; Umdasch Digital Retail shall therefore not be liable for any mistakes made by these workers. 11.1 The place of performance for deliveries and services is the place of reception specified by Umdasch Digital Retail. The legal venue for all disputes arising from the contractual relationship is Linz; however, Umdasch Digital Retail is entitled to sue the supplier at any other court in Austria. 11.2 Austrian law applies to all contractual provisions, except for the provisions of the United Nations Convention on Contracts for the International Sale of Goods, Federal Law Gazette 1988/96 and the conflict-of-law rules of the Private International Law Act (IPRG).

Version: January 2017


Terms and Conditions of Purchase Umdasch Digital Retail GmbH, Industriezeile 35 / Top 5, A-4020 Linz OA-DR-002-ENG-01 12.

Right of withdrawal

12.1 Umdasch Digital Retail is entitled to withdraw from the contract at any time, in compliance with a notice period of 1 (one) month. 12.2 If one of the following instances occurs, Umdasch Digital Retail is entitled to withdraw from the contract without setting a grace period: - if bankruptcy, settlement or preliminary proceedings are initiated against the assets of the CP; if the CP breaches statutory provisions, especially in the area of anti-corruption or monopoly law, or the provisions of the code of conduct of the Umdasch Group; - if the delivery is late and has not yet been made despite the setting of an appropriate grace period, or the delivery is faulty and the fault complained about has not yet been rectified despite the setting of an appropriate grace period. 12.3 The customer shall not have any claims against Umdasch Digital Retail as a result of withdrawing from the contract. 13.

Prohibition of offsetting

14.

Other

13.1 The CP is not entitled to offset its own claims against the claims or demands of Umdasch Digital Retail or to withhold or curtail services for any reason whatsoever. 13.2 This prohibition of offsetting shall not apply to claims of the CP that have been acknowledged by Umdasch Digital Retail in writing or established as final and absolute by the courts. 14.1 If Umdasch Digital Retail has provided the CP with documents - in particular drawings, plans and samples and source codes - the CP shall check these, in particular for their correctness and completeness, and take it upon itself to clarify any doubts in this regard with Umdasch Digital Retail. 14.2 All documents, plans, samples, models, prototypes, source codes, etc. provided shall remain the property of Umdasch Digital Retail and must be returned to Umdasch Digital Retail after the contract has been fulfilled or has ended. Copyright and/or other commercial protective rights to these documents shall not be transferred by Umdasch Digital Retail or ceded for use. 14.2 The CP is required to keep all documents and other information received from Umdasch Digital Retail in the strictest of confidence and to use them only or the fulfilment of the present agreement. This applies in particular, but without limitation, to production expertise, quantities, documentation and drawings and source codes that are made accessible to the CP in the course of the business relationship with Umdasch Digital Retail or about which the CP otherwise becomes aware. This obligation shall continue beyond the termination of the business relationship.

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Version: January 2017

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