General Terms of Purchasing for Tantaline Inc, Tantalum Technologies and Affiliated Copmanies

 

The following general Terms of Purchasing shall apply to any delivery of products, components or other goods and thereto possibly related services (hereinafter called "Products") to Tantaline Inc. or Tantalum technologies A/S, hereinafter called "the Buyer", from any given supplier, hereinafter called "the Seller".

 

These general Terms of Purchasing shall be mutually binding for the Seller and the Buyer unless otherwise explicitly agreed. The Buyer shall not be bound by conditions made by the Seller deviating from these general Terms of Purchasing unless such conditions have been agreed in writing between the Buyer and the Seller. Neither shall the Buyer be bound by conditions made by the Seller even though the Buyer has not objected to such conditions. Acceptance of Products cannot be interpreted as implicit acceptance on the part of the Buyer of deviating terms of delivery made by the Seller.

In addition to the terms in this document any purchase is made according to Tantaline Code of Conduct for Suppliers and sub-contractors

 

"International rules on uniform interpretation of trade terms 2000" (INCOTERMS 2000) from the International Chamber of Commerce (ICC) shall apply to the terms and conditions used in these general Terms of Purchasing.

Offers from the Seller shall be free of charge and not binding on the Buyer. The Seller shall deliver Products in conformity with the order sent by the Buyer and accepted by the Seller or in conformity with the offer sent by the Seller and accepted by the Buyer.

 

By confirming or executing orders, the Seller accepts the Buyer's general Terms of Purchasing. In case of an auction, the Buyer reserves the right to reject all offers made and the right to choose freely between the offers made without any duty whatsoever to choose the cheapest offer. Auctions held by the Buyer may in the individual case prescribe special rules on the individual auction. These special auction rules shall prevail compared to the rules in these general Terms of Purchasing to the extent that they deviate from the terms and conditions in these general Terms of

Purchasing.

 

Orders from Tantaline Inc. and order confirmations from the Seller shall be in writing or E-mail. Where there is no order in writing and/or an order confirmation in writing, Tantaline Inc. shall have the right to return goods received from the Seller. Return costs shall be paid by the Seller.

 

Delivery shall be effected at the place and time specified in the order or in the order confirmation. Where nothing is otherwise agreed in order or order confirmation, delivery shall be effected DDP at the destination specified by the Buyer. Where shipping instructions specified by the Buyer not observed, the Seller shall be liable for any additional costs and any resulting loss. All deliveries of Products shall be accompanied by a consignment note stating: the Buyer's code and order numbers, date of order and the gross and net weights of the consignment. All invoices and other correspondence shall be duly signed and state the Buyer's code and order numbers, date of order and the gross and net weights of the consignment where relevant depending on the type of delivery. Invoice shall be made in one copy unless any other form of collection of payment is agreed, such as e.g. use of EDI, E-box and the like. Invoices from suppliers outside the U.S. shall specify the tariff number of the place of delivery. The packing shall clearly state the recipient's address and order reference.

 

In case of strikes, lockouts, earthquakes or any other event beyond the control of the Buyer causing lack of market potential for the Buyer's products, the Buyer reserves the right to postpone the receipt of the delivery for up to 3months or wholly or partially to cancel the agreement made. As a result of such postponement or cancellation, the Buyer shall not be under any obligation to pay the Seller any compensation for any loss apart from irretrievable production costs paid buy the Seller in relation to the order before the notification of the Buyer's postponement or cancellation came to the knowledge of the Seller.

 

The time of delivery specified by the Buyer must be observed. Delayed delivery shall entitle the Buyer to cancel the order and claim compensation, and in that case the Buyer shall not be under any obligation to pay the Seller for work already done on the order.

 

If the Seller finds that he cannot deliver on time, or if delay on his part is to be considered probable, the Seller shall without delay notify the Buyer hereof in writing and at the same time state the reason for the delay and the time at which delivery is expected to be effected. If the Seller does not make such a notification, he shall, irrespective of the terms and conditions stated below, compensate the Buyer for the losses and costs incurred by the Buyer.

 

If the Seller does not deliver the Products on time due to delayed notification, and if the Buyer does not cancel the order, the Buyer shall be entitled to liquidated damages as from the day upon which delivery should have been effected. The liquidated damages amount to 2.0% of the total order sum per week or fraction of a week of the delay. The liquidated damages cannot amount to more than 10% of the total order sum. The liquidated damages shall fall due for payment on demand in writing from the Buyer, but not before the Product has been delivered in full or alternatively at the time at which the Buyer cancels the agreement pursuant to the above. Part deliveries shall not exempt the Seller from liability pursuant to this provision.

 

Too large quantities or partial delivery will not be accepted and shall give the Buyer the same rights as does delay. In case of too small quantities, the whole delivery shall be considered delayed. Decisive in this respect is solely the Buyer's quantity control.

 

Where delivery sampling has been agreed, the sampling shall be made where the Products are produced unless otherwise agreed. If technical requirements to the sampling have not been specified in the agreement, the sampling shall be made in conformity with good practice in the industry in question in the country where the Products are produced. The Seller shall give the Buyer such notice of a delivery sampling that the Buyer can be present at the sampling. Delivery sampling can be made even though the Buyer is not represented provided the Buyer has received proper notice. The Seller shall keep records of the delivery sampling. The sampling records shall be sent to the Buyer. The sampling records shall be considered to give a correct description of the delivery sampling and its result unless the Buyer proves otherwise. If the Products in the delivery sampling turn out not to be according to contract, the Seller shall without delay see to it that the Products are brought into conformity with the agreement. On the Buyer's request, a new delivery sampling shall thereafter be made. If the defect was negligible, a new delivery sampling cannot, however, be required.

 

The Seller shall pay all costs of delivery samplings. The Buyer shall, however, pay all costs of his representatives, including travelling and accommodation expenses, in connection with delivery samplings.

 

The Buyer shall pay within invoice month plus 90 days from date of invoice. The credit granted by the Seller shall appear from the invoice sent.

 

The buyer will not accept any conditional sale on the part of the Seller.

 

Drawings, rough designs, technical information, prototypes, models and other information always to be considered confidential and which the Buyer has handed over to the Seller shall remain the property of the Buyer and shall be treated confidentially. The Seller shall mark all such information with the Tantaline Inc. name. Unless otherwise agreed in writing, all special tools and special moulds produced for deliveries to the Buyer (no matter who has paid for tools or moulds) shall be maintained without expenses to the Buyer  and be insured by the Seller to the full replacement value, and such tools and moulds shall only be used for deliveries to the Buyer. If the Buyer shall wholly or partially pay costs for the production of tools, moulds or models, such costs shall not be paid until the Buyer has approved of type samples. Tools, moulds or models wholly or partly paid by Buyer shall be the property of the Buyer. The Seller shall mark any such equipment with the Tantaline Inc. name.

The above information, tools, moulds and models must not, without the consent of the Buyer, be used for other purposes than those of the Buyer unless otherwise expressly agreed, and that is why they must not, without the consent of the Buyer, be copied, reproduced, transferred to third parties or be used for deliveries to others than the Buyer. Upon request the Seller shall return all material of any kind handed over by or produced for the Buyer.

 

In case the Seller makes use of sub-suppliers, the above information can, with the consent of Tantaline Inc., be handed over to such sub-suppliers.

 

If the Products wholly or partially consist of software developed to the Buyer, the Buyer shall acquire all rights to such software and to accompanying source and object code. If the Products contain software not specifically developed for the Buyer, the Buyer shall acquire a nonexclusive, royalty-free and geographically unlimited license for use of this software in Tantaline Inc. for use in products sold by Tantaline Inc.. The Seller shall be under the obligation to transfer to the Buyer all necessary information and source code material, etc. which are necessary for Tantaline Inc.' use of the intellectual property rights in question. The Seller shall be under the obligation for at least 5 years from the delivery of Products to the Buyer to be able to service and maintain all material related to the intellectual property rights in question.

 

Upon the Buyer's demand, the Seller shall on

his own account defend the Buyer against any claim made against the Buyer by third parties as a result of the Products' alleged violation of such third parties' patents, copyrights or similar intellectual property rights. The Seller shall indemnify the Buyer for any loss and all costs incurred by the Buyer as a result of the violation or the alleged violation. The Seller shall for the Buyer and/or the Seller acquire the right to continuous use of the Products, replacement or modification of the Products so that the Products no longer violate the rights of third parties. If this is not possible, the Seller shall credit the Buyer with the Products delivered and accept all returned Products.

 

The Seller cannot without reasonable notice and without prior acceptance from the Buyer make alterations in his Products for delivery to the Buyer even though this happens without altering agreed technical specifications.

 

For 3 months from delivery, the Seller shall guarantee that the Products delivered live up to agreed demands and are not defective or faulty due to production, construction or material defects deteriorating the Products'

suitability for normal or agreed use. Upon demand from the Buyer and upon the Buyer's choice, the Seller shall credit, repair or deliver goods in replacement of defective Products without any expenses to the Buyer. Products found defective by the Buyer and not wanted repaired by the Buyer shall be returned upon the Seller's wish and at the Seller's expense. If the Buyer has not wanted replacement delivery of the defective Products, the Buyer can invoice the Seller for equivalent amounts. Such invoice shall at the same time contain the expenses for demounting and possibly remounting, freight, customs duties (to the extent that these are not refunded by the customs authorities), possible taxes, insurance and clearance and all other losses suffered by

the Buyer as a result of defective Products.

 

Decisive for the Buyer's right of complaint is whether the defect has arisen within the guarantee period of 3 months and not the time of the Buyer's becoming aware of the defect – nor the time of the Buyer's complaint. Moreover, the Seller renounces to protest due to delayed complaint.

 

The Seller shall be responsible for it that the Products delivered live up to quality and security requirements and other valid rules not only in the country of production but also in the country to which the Products are delivered or expected to be used if the place of use has been specified by the Buyer. In case of disagreements between such standards, the standards used at the place of delivery shall apply.

 

The Seller shall guarantee that the Products delivered are not defective or faulty or have properties that can cause product liability damages. The Seller shall indemnify the Buyer for any product liability and loss which can wholly or partially be ascribed to damage or obvious risk of such as a result of defective or faulty Products delivered or properties in same.

 

The Seller shall be under the obligation to be summoned by the court or the court of arbitration hearing claims for compensation raised against the Buyer due to damage claimed to have been caused by the Products. The Seller shall be under the obligation to take out and maintain product liability insurance with a cover considered usual considering the Seller's business and turnover. Upon the Buyer's demand, the Seller shall document such product liability cover.

 

13. The Seller's liability during stays at the Buyer's property

If, as part of an agreement with the Buyer, the Seller's employees are present at the Buyer's property, the Seller shall make himself familiar with and observe the rules and procedures on the environment and safety laid down by the Buyer. The Seller shall indemnify the Buyer for any damage to the Buyer's property and staff arising as a result of the Seller's employees' negligent or willful behavior.

 

If one or more of the terms and conditions in these General Terms of Purchasing are deemed invalid, illegal or inoperable, none of the further terms and conditions' validity, legality or operability shall thereby be affected or deteriorated.

 

Disputes arisen under these General Terms of Purchasing and the underlying agreementshall be settled pursuant to the law in theBuyer's country, however always excluding CISG and provisions on the choice of law.Disputes of any kind arising in connection with the delivery shall be settled in the courts of the Buyer's country. Disputes shall be heard at the Buyer's venue.

 

If the Buyer so requests, disputes shall be finally settled by arbitration. In that case, the procedure shall be pursuant to the rules and regulations of arbitration laid down by the International Chamber of Commerce (ICC).

Meetings shall be held at a place specified bythe Buyer and the language of proceedings shall be English unless otherwise agreed between the parties.

16. Code of Conduct for suppliers
Any purchased from the buyer is ordered in accordance to Tantaline's Code of Conduct for suppliers and sub-contractors that MUST be fulfilled by the Seller.