General Terms and Conditions of Purchase of Retina Implant AG

1. Scope

1.1
These General Terms and Conditions of Purchase shall apply only to entrepreneurs in the exercise of their commercial or self-employed professional activity and to legal entities under public law. They shall apply to all business transactions between Retina Implant AG (hereinafter "RI") and the Supplier, even if reference is not made hereto in subsequent agreements. They apply to both work and services. In place of delivery of the delivered products, in delivery consisting of work, acceptance takes place upon approval of that work and for services upon receipt of the services.

1.2
Conditions of the Supplier that conflict with, supplement or deviate from these General Terms and Conditions of Purchase shall not become part of the contract, unless RI would have agreed, in writing, to their validity. These General Terms and Conditions also apply if RI unconditionally accepts a delivery from the Supplier, in full knowledge of its conflicting, supplementary or deviating conditions.

1.3
Rights to which RI is entitled under statutory rules or other agreements going beyond the provisions of these General Terms and Conditions of Purchase remain unaffected.

2. Conclusion of the Contract and Contractual Amendments, Performance of the Contract

2.1
Offers, designs, plans, cost estimates, samples, and patterns of the Supplier are free of charge for RI, unless otherwise agreed.

2.2
An order is binding only if it was placed by RI in writing or - in the case of an oral order – it is properly confirmed by the Supplier, in writing. An order placed with the assistance of automatic facilities without a signature or name shall be deemed to be written. Orders that evidently contain errors, typing errors or miscalculations shall not be binding on RI.

2.3
Without delay but no later than one week from receipt of the order, the Supplier must issue a written order confirmation explicitly stating the price and delivery time. Deviations between the order confirmation and the order are deemed agreed only once they have been confirmed, in writing, by RI. This applies in the same way to subsequent contractual amendments.

2.4
Order confirmations, dispatch notices, consignment notes, delivery notes, invoices and other written documentation from the Supplier must state the order information, in particular order number, order date and Supplier number.

2.5
Silence on RI's part in response to offers, requests or other declarations by the Supplier shall be deemed to constitute consent if this has been agreed, in writing, in advance.

2.6
If, when implementing a contract, any deviations from the originally agreed specifications are necessary or expedient, the Supplier must notify RI without delay and in writing and to submit proposed amendments. RI will notify the Supplier whether and which amendments the Supplier should make to the original order. RI is entitled at any time, in particular with respect to the composition of the products, to amend the order. In these cases, the Supplier is to be provided with an appropriate period within which to make the necessary amendments to production. If these amendments result in additional costs for the Supplier, the parties shall negotiate a corresponding adjustment to the price agreed.

2.7
RI reserves all ownership, copyright and other proprietary rights in all documents. Such documents may be used only for the production based on the order by RI and are not permitted to be disclosed to third parties without RI's prior written consent. The Supplier shall upon request by RI immediately provide all documents to RI provided these are no longer needed in the ordinary course of business. The same applies in particular to all RI's designs, samples, specimens and models.

2.8
The Supplier warrants for the duration of the supply relationship an unaltered manufacturing procedure using the same materials. The Supplier will inform RI without delay, due to the duration of the licensing procedure preferably as soon as it intends to make amendments, and in writing about all proposed amendments to the design, manufacturing procedure and as regards the substances used, that may have an effect on the function and quality of the products or that may affect the market approval of the products. Modifications to the manufacturing procedure or the materials are subject to RI’s prior written consent. 

2.9
Prior to conclusion of the contract, the Supplier must notify RI in writing, if under the rules in the Federal Republic of Germany the products ordered are subject to export controls or other restrictions on marketability. In the case of incorrect information, especially in the case of failure to provide information, or the provision of incorrect, incomplete or inaccurate information, RI is entitled, on fruitless expiry of a deadline set by it and without consideration of any fault on the part of the Supplier, to withdraw from the contract. Further claims of RI remain unaffected.

2.10
If the Supplier's financial circumstances deteriorate substantially or if the justified application for the initiation of insolvency proceedings or comparable proceedings in respect of the Supplier's assets is rejected due to lack of assets, RI is entitled to rescind the contract, in whole or in part.

3. Packaging, Shipping and Transport, Delivery and Acquisition of Ownership

3.1
The Supplier must comply with the specifications of RI concerning the delivery of the products, in particular the applicable transport, packaging and delivery instructions. Delivery must be made in packaging that corresponds to the type of product. In particular, the Supplier must mark the packaging stating the delivery volume, the article and material numbers, the delivery quantity, date of manufacture and the order data, in particular the order number, order date and supplier number.

3.2
All deliveries must be accompanied by a delivery note stating the delivery volume, the article and material numbers, the delivery quantity, the date of manufacture and the order data, in particular the order number, order date and Supplier number, in a single copy.

3.3
When delivering the products, the Supplier must also comply with the Hazardous Substances Ordinance (Verordnung zum Schutz vor Gefahrstoffen: GefStoffV), in particular packaging and labelling the products accordingly and expressly stating any dangerous substances in the delivery note or by other appropriate means e.g. provision of a safety data sheet.

3.4
Unless otherwise agreed, the Supplier is required to take out suitable transport insurance with appropriate coverage amount and type and, on RI's request, to provide proof of such insurance, in writing and without delay.

3.5
Unless otherwise agreed with RI, in writing, deliveries can be made only on working days within the standard working hours from Monday to Thursday from 9:00 a.m. to 5:00 p.m. and Fridays from 9:00 a.m. to 3:00 p.m. The Supplier shall release RI from all third-party claims based on deliveries being made outside these times, unless the Supplier is not responsible for the delivery outside of standard business hours.

3.6
Upon surrender to RI ownership of the products passes to RI immediately, directly and free from encumbrances. The Supplier warrants that it is authorised to resell and transfer ownership.

4. Delivery Period

4.1
The delivery times (delivery periods or delivery dates) stipulated in the order or agreed otherwise are binding. The delivery periods begin with receipt of the order. The products must have been received at the delivery address stated by RI within the delivery period or on the agreed delivery date.

4.2
If it is evident to the Supplier that the delivery time cannot be complied with, it must notify RI immediately and in writing, stating the reasons and the expected duration of the delay.

5. Prices and Payment

5.1
The price stated in the order is binding. In the absence of any agreement to the contrary, the price is "free point of use" and includes, in particular, the costs of packaging, delivery (including delivery equipment), transport and insurance to the delivery address stated by RI as well as customs duties and other public charges and adequate and complete documentation, if required. VAT at the statutory rate is included in the price, unless it is expressly stated to be a net price. If shipping and transport costs are not included in the price in individual cases, and the assumption of shipping and transport costs by RI has been agreed this shall apply only for the cost of the least expensive method of shipping and transport, even if faster carriage would be required in order to comply with the agreed delivery periods or delivery times.

5.2
If delivery ex VAT is an option, the Supplier must furnish the necessary evidence, provided such evidence is within his sphere of responsibility. For deliveries within the European Union, the Supplier must voluntarily state its VAT-ID No., provide evidence of his status as an entrepreneur and to assist in accounting and documentary export certificates.

5.3
RI shall receive a single copy of the Supplier's invoice. It should not be enclosed with the delivery, but should instead be sent separately. Invoices without an order number, order date or Supplier number will be deemed not received, as they cannot be processed.

5.4
Payment will be made following acceptance of the products and receipt of the invoice subject to the payment dates and terms agreed in the individual contract. Unless otherwise agreed, payment is to be made within 21 days with a 2 % discount or net within 30 days. Payments are made only to the Supplier and subject to review of the invoice. RI is entitled to remit payment at its discretion also by cheque or bank transfer. In the case of defective delivery, RI is entitled to withhold payment until proper performance, without forfeiting any discounts, deductions or similar price reductions. The payment period begins upon complete rectification of all defects. In the event of premature delivery of the products, the payment period starts at the earliest on expiry of the delivery period or at the agreed delivery date. If the Supplier is required to provide material tests, test reports, quality documents or other documents, the acceptance of the products triggers the payment period only if and when RI is also provided with all documentation owed.

6. Transfer of Risk

6.1
The Supplier bears the risk of the accidental loss or deterioration of the products until such time as these are handed over to RI.

6.2
If the Supplier is required to assemble or install the products at RI's premises the risk of accidental loss and accidental deterioration of the products passes to RI only upon assembly or installation of the products. This also applies if RI assumed certain services, such as transport costs.

7. Warranty, Claims for Defects, Quality Assurance and Guarantees

7.1
The Supplier warrants that the supplied products comply with the agreed specifications, approved models and the applicable legal provisions, as well as the guidelines and directives of authorities, professional associations and trade associations, and also the relevant DIN specifications.

7.2
RI must notify the Supplier of evident defects immediately upon delivery of the products and hidden defects immediately upon the identification thereof. Notice is considered immediate if it is provided within two weeks of delivery for evident defects and within two weeks of discovery for hidden defects. In the case of delay or loss of the notification, timely dispatch is sufficient. For shipments that are composed of a large number of the same product, RI must inspect an appropriate numberof the supplied products for defects. If such inspection renders the products unsuitable for sale, the volume to be inspected shall be reduced by a reasonable amount. If individual random samples within a delivery are defective, RI can at its discretion demand that the Supplier sorts out the defective items or assert claims for defects with respect to the entire delivery in accordance with the statutory provisions. If, as a result of defects in the products, tests going beyond the scope of standard incoming inspection are necessary, the Supplier shall bear the costs of such tests.

7.3
If RI and the Supplier are in an ongoing supply relationship concerning products or services relevant to quality or market approval, it may be agreed in a separate quality assurance agreement, that the Supplier shall implement an appropriate quality management system and to manufacture and inspect the products to be supplied in accordance with this quality management system. If the Supplier obtains any production or testing equipment, software, services, material or other supplies from sub-contractors for use in its manufacturing or for its quality assurance of the product, it will integrate said sub-contractors by contractual agreements into its quality management system or itself ensure the quality of the supplies. In particular, the Supplier will carry out own materials testing. The Supplier shall keep records of the performance of quality assurance measures and properly keep these records, as well as any samples of the products to be supplied. It shall to the extent necessary grant RI access and insight, explain the records and provide copies of the records, as well as any samples. RI shall without delay upon acceptance of the products, insofar as this is feasible in the ordinary course of business, inspect whether they comply with the number of units ordered and the type ordered and whether there is any evident transport damage. If a defect is identified in the course of these inspections or later, RI must notify the Supplier within two weeks of the inspection or upon discovery. There will be no further incoming goods inspection.

7.4
If due to defects the supplied products are not marketable under the applicable legal provisions or are to be properly disposed of by RI, RI is entitled to carry out such disposal at the expense of the Supplier, unless the Supplier is not responsible for the defects.

7.5
In the event of defects in the products, RI is entitled, without prejudice to the statutory claims based on defects, at its own discretion to require immediate subsequent performance in the form of the rectification of the defects or the supply of defect-free products by the Supplier. The Supplier must bear the costs incurred in the course of subsequent performance. This also applies if, in line with their intended use, the products were brought following delivery to a location other than the delivery address stipulated by RI. If the Supplier fails to fulfil its duty to render subsequent performance within a reasonable period specified by RI, RI can itself carry out the necessary measures or have them carried out by a third party at the cost and at the risk of the Supplier, unless the Supplier is not responsible for the absence of the performance owed upon expiry of the subsequent period. The setting of a deadline is unnecessary in particular if the Supplier refuses both forms of subsequent performance or if the subsequent performance failed or is unreasonable for RI. Subsequent performance is unreasonable for RI in particular if RI has already delivered the defective products to third parties. In addition, RI is not required to set a deadline if the Supplier seriously and categorically refuses performance or if there are special circumstances which, giving due consideration to the interests of all those involved, justify the immediate assertion of claims for defects. Special circumstances exist in particular in urgent cases in which subsequent performance by the Supplier will in all likelihood not resolve the impending disadvantage for RI. In the event that there is no need for RI to set a deadline, RI is entitled to perform the necessary measures at the cost and at the risk of the Supplier, even if a reasonable subsequent deadline has not expired, provided RI notifies the Supplier accordingly. Further claims of RI remain unaffected.

7.6
The acceptance of products as well as the processing, payment for and re-ordering of products not yet identified and notified as being defective do not constitute approval of the delivery, nor a waiver of claims for defects by RI.

7.7
The limitation period for claims for defects of RI is 36 months from the date of delivery of the products. This does not apply if the Supplier fraudulently concealed the defect.

7.8
This does not affect the statutory provisions applicable when there is a sale of consumer goods (“Verbrauchsgüterkauf” in the sense of German law) at the end of the supply chain.

7.9
Further guarantees of the Supplier shall remain unaffected.

8. Supplier regress

8.1
RI is entitled to the legally determined regress claims within a supply chain without limitation in addition to the claims for defects. RI is in particular entitled to demand exactly the type of subsequent performance from the Supplier which RI owes to its customer in the individual case. This does not restrict RI's statutory right to choose.

8.2
Before RI approves or fulfils a claim for defects asserted by a customer, RI will inform the Supplier and ask for a written statement with a brief explanation of the facts. If a substantiated statement is not made within a reasonable period of time and if no amicable solution is reached either, the claim for defects actually granted by RI is deemed to be owed to the customer of RI. The Supplier is responsible for proof to the contrary.

8.3
The claims of RI arising from supplier regress also apply if the defective goods have been further processed by RI or another company, e.g. by installation in another product.

9. Product Liability und Field Safety Corrective Actions

9.1
The Supplier is required to indemnify RI against third-party claims under national or foreign product liability legislation, unless it is not responsible for the product defect pursuant to product liability law principles. Further claims of RI remain unaffected.

9.2
In the context of this indemnification obligation, the Supplier must, in particular, reimburse to RI any expenses that are incurred under or in connection with a warning, exchange, product-recall measures or Field Safety Corrective Action carried out by RI. RI will, to the extent possible and reasonable, notify the Supplier of the content and scope of measures to be implemented and give it the opportunity to respond. The Supplier must support RI to the best of its ability in the measures to be implemented and take all reasonable measures ordered by RI.

9.3
The Supplier may be required in the event of products and services of relevance to quality and market approval to take out and maintain extended product liability and recall insurance with worldwide cover and coverage appropriate for the products of at least EUR 3 million per personal injury for each individual person and at least EUR 5 million per instance of damage to property. The Supplier already now assigns the claims under extended product liability and recall insurance, together with all ancillary rights, to RI. RI hereby accepts the assignment. If, pursuant to the insurance contract, assignment is not permissible, the Supplier hereby instructs the insurer to make any payments only to RI. Further claims of RI remain unaffected by this. The Supplier must on request provide RI proof of the conclusion and existence of the extended product liability and recall insurance. The Supplier shall refrain from any and all actions and omissions that could jeopardise the insurance protection.

9.4
If the Supplier fails to properly fulfil the agreed obligation pursuant to subsection 3, RI is entitled, but under no obligation, to conclude extended product liability and recall insurance at the Supplier's expense.

10. Third-Party IP Rights

10.1
The Supplier warrants that the delivery and use of the products does not violate any national or international patents, utility models, licenses or other IP or copyrights of third parties. This does not apply if the products were developed by RI.

10.2
If action is taken by a third party against RI or its customers due to the delivery and use of the products based on a breach of proprietary rights, the Supplier is required to indemnify RI against such claims. The indemnification obligation applies to all expenses incurred by RI in connection with the legal action. In particular, RI is entitled at the Supplier's expense to acquire approval for the use of the products from the third party. The indemnification obligation does not apply if the Supplier is not responsible for the violation of third-party rights.

11. Force Majeure

11.1
If RI is prevented by force majeure from fulfilling its contractual obligations, in particular from accepting the products, RI shall for the duration of such impediment and for a reasonable start-up time, be released from its performance obligations, without being liable to pay compensation to the Supplier. The same applies if, as a result of unforeseeable circumstances beyond its control, in particular, industrial action, official measures, energy shortages or significant disruptions, render performance is unreasonably hampered or temporarily impossible for RI. This also applies if such circumstances occur at a time at which RI is in default of acceptance.

11.2
RI is entitled to withdraw from the contract if such impediment lasts for more than four months and as a result of the impediment RI no longer has any interest in performing the contract. On request by the Supplier, RI will declare on expiry of the deadline whether it intends to make use of its right of withdrawal or whether it will accept the products within a reasonable period.

12. Confidentiality

12.1
For the duration of five years from delivery, the parties are required to maintain strict confidentiality with respect to all information to which they become privy and which is designated confidential or can be identified as business or trade secrets based on other circumstances and, unless necessary in the course of the business dealings between the parties, not to record, disclose or utilise this information.

12.2
The confidentiality obligation does not apply if the information was demonstrably already known to the receiving party prior to commencement of the contractual relationship or was generally known or publicly available prior to commencement of the contractual relationship or, through no fault on the part of the recipient, becomes generally known or publicly accessible. The burden of proof is borne by the recipient.

12.3
The parties shall ensure by means of suitable contractual agreements with the employees and agents acting on their behalf, in particular with freelance staff, plants and service providers, that for five years from delivery they too refrain from any and all personal use, disclosure or unauthorised recording of such business and trade secrets.

13. Data protection

13.1
The parties mutually undertake to comply with the statutory provisions on data protection, in particular the EU General Data Protection Regulation ("GDPR") in the execution of the contract and to impose compliance with these provisions on their employees.

13.2
The parties process the personal data received (names and contact details of the respective contact persons) exclusively for the fulfillment of the contract and will secure them by technical security measures adapted to the current state of the art (Art. 32 GDPR). The parties undertake to delete the personal data as soon as their processing is no longer necessary. Any statutory storage obligations shall remain unaffected.

13.3
Should RI in the context of the contract process personal data in order of and for the Supplier, the parties will conclude an agreement on the order processing pursuant to Art. 28 GDPR.

14. Final Provisions

14.1
The Supplier is entitled to transfer rights and duties to third parties or to have part of an order or material parts of an order carried out by third parties only with RI's prior written consent.

14.2
Counterclaims of the Supplier entitle it to set-off only if these have been legally determined or are uncontested. The Supplier can assert a retention right only if its counterclaim is based on the same contractual relationship.

14.3
Sub-contractors of the Supplier are deemed to be its vicarious agents. They are to be notified to RI on request, without delay and in writing.

14.4
The legal relationship between the Supplier and RI is governed by the laws of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

14.5
The exclusive place of jurisdiction for all disputes relating to the business dealings between the Supplier and RI is RI's registered seat. RI is also entitled to file suit at the seat of the Supplier and at any other permissible place of jurisdiction. Any arbitration clauses are hereby rejected.

14.6
The place of performance for the delivery and subsequent performance obligations of the Supplier is the delivery address stated by RI. Otherwise, the place of performance for all services of the Supplier and RI is the seat of RI, unless otherwise agreed, in writing.

14.7
The contractual language is English.