Standard Terms and Conditions of Sale

I. General
1. The THEVA Dünnschichttechnik GmbH is hereinafter referred to as THEVA and the company, agency or individual to whom any proposal or quotation is made and/or from whom any purchase order is received is hereinafter referred to as the Customer.
2. All quotations are subject to final written acceptance by THEVA of the Customer’s purchase order, including any excep-tions thereto before any responsibility for performance shall exist on the part of THEVA. All purchase orders received by THEVA not in response to any quotation are subject to written acceptance by THEVA. All changes from the written quo-tation of THEVA must be approved and accepted in writing by THEVA. The Customer is hereby notified in advance of THEVA’s objection to any proposed additional or different terms or conditions.
3. Unless otherwise set forth in the details of a written quotation or proposal, all quotations are valid for a period of thirty (30) days from the date thereof. Any purchase order issued by the Customer with respect to a quotation from THEVA shall be subject to written confirmation of acceptance by THEVA.

II. Pricing and terms of payment
1. All prices are F.O.B. THEVA’s plant in Ismaning, Germany unless otherwise specified. Neither federal, state or other taxes nor custom duties and fees are included in the price quotation.
2. Prices are due without any subtraction within thirty (30) days after receipt of the invoice.
3. Hold back of payment or setoffs are not allowed and will not be accepted by THEVA. In case of delayed payment THEVA may charge common interest rates, even without previous reminder.
4. Failure on the part of the Customer to make full payment on all sums due THEVA as set forth in THEVA’s quotation and these standard terms and conditions of sale shall constitute a material breach of the contract by the Customer.
5. Sales in excess of thirty thousand dollars ($ 100,000) are subject to a special provision for terms of payment as set forth in THEVA’s quotation and may include payment at time of acceptance of purchase order, progress payment, payment prior to shipment or other terms as defined by THEVA.
6. With the issuing of the purchase order the Customer recognizes THEVA’s terms and conditions of sale.

III. Cancellation
Any request by the Customer for cancellation in total or in part of any purchase order accepted by THEVA must be issued in written form, stating the reasons therefore. The Customer shall be liable for the payment of the following charges to THEVA in the event of cancellation:
a) All charges incurred (including overhead, G&A, and profit) prior to the date that notice of cancellation is received by THEVA for all parts peculiar to the Customer’s requirements. Upon payment by the Customer of these charges such parts become the property of the Customer. THEVA will store said parts for a reasonable period of time pending receipt of the Customer’s instructions for disposition. Such storage is at the Customers’ s risk and may be subject to storage charges if stored by THEVA for longer than thirty (30) days from the cancellation date.
b) Charges to convert modified standard parts for return to THEVA’s inventory.

IV. Delivery time
1. The delivery time starts with the date of the order confirmation, however, not before the Customer has supplied all nec-essary documents, permits, releases, and receipt of the agreed advance payments.
2. The delivery time is observed if at its expiration the ordered items have left THEVA’s plant or if readiness for shipping has been notified.
3. The delivery time is reasonably extended when shipping is delayed by circumstances beyond THEVA’s control, i.e. force majeur, strikes, lockouts, embargoes etc. This regulation applies as well if these circumstances happen to subcontrac-tors.
4. THEVA’s delivery estimates represent the best information available at that time and THEVA will make every effort to meet such dates. Unless there is a specific agreement in writing by THEVA, THEVA shall not be liable for any claims of damage by the Customer resulting from any delay in shipping dates from those quoted.
5. The observation of the delivery time presupposes the execution of the obligations of the contract by the Customer.

V. Shipment and delivery
1. Title to all items sold passes to the Customer upon delivery of purchased items to the carrier for shipment per Customers instructions. THEVA is not responsible for loss or damage after delivery to the carrier. Title to items supplied on lease or consignment remains with THEVA, and the Customer is responsible for safeguarding sam
2. Unless otherwise specified by THEVA, THEVA will take out an insurance for the shipping of all items at the expense of the Customer.
3. Part shipping is allowed.
4. In case of receipt of damaged goods it is the responsibility of the Customer to immediately file claims for any damages to content and to proceed on the following scheme:
a) Inspect the contents of the shipment and check the merchandise carefully.
b) If any damage is found, contact THEVA and the carrier and request to file a damage claim. Request for inspection must be made immediately.
c) Keep the container, all packing material, and invoice until damage claim is settled.
d) Failure to contact THEVA and the carrier and file a claim results in Customer’s liability.

VI. Warranty and limitations of remedies
1. THEVA warrants that all equipment manufactured by it shall be free of defects in materials and workmanship under normal use and service for a period of twelve (12) months from date of shipment from THEVA’s plant. This warranty is subject to THEVA’s equipment being installed, maintained , and operated in accordance with the operating and mainte-nance instructions accompanying each item manufactured by THEVA. Warranty shall be void if THEVA’s equipment is modified by the Customer or used in other than the recommended manner or applications. Purchased equipment incor-porated into any item supplied by THEVA will be covered by manufacturer’s warranty.
2. THEVA warrants that, at the time of delivery, any other products processed or manufactured and sold by it hereunder are free of defects in material and workmanship and conform to THEVA’s specifications.
3. No warranty is provided by THEVA for products sold hereunder which are not manufactured or processed by THEVA, but the manufacturer’s warranty for such products, shall be assigned to the Customer without recourse to THEVA.
4. The foregoing warranties are in lieu of and exclude all other warranties not expressly set forth herein, whether ex-pressed or implied by law or otherwise, including without limitation any warranty of merchantability or fitness for a par-ticular purpose. In no event will THEVA be liable for consequential damages.
5. In the event of THEVA’s liability, whether based on contract, tort (including but not limited to negligence and strict liabil-ity) or otherwise, Customer’s sole and exclusive remedy will be limited, at THEVA’s option, to repair or replacement by THEVA of any nonconforming item for which claim is made by the Customer or to repayment of the portion of the pur-chase price by the Customer attributable to the nonconforming item. THEVA will not be liable for any other damages, whether direct, incidental, consequential or otherwise.
6. Deviating from the above conditions for the delivery of coated substrates following rules apply:
a) The quoted film specifications are warranted for a period of 6 months after delivery.
b) In the case of warranty remedy is limited to the replacement of defective items with material conforming to the specificatio
c) In the case that substrates supplied by the Customer for deposition should be damaged or rendered useless under THEVA’s responsibility, THEVA reserves the right to replace such substrates with identical material.
d) Excluded are any damages originating beyond THEVA’s reasonable control, e.g. improper storage, handling, and transport. Warranty expires if the delivered material is modified (e.g. by processing).

VII. Patents and rights
1. The equipment to be provided by THEVA under its quotation may include items for which a supplier or THEVA holds patent rights, or has patent rights pending, or has a license to manufacture under patent rights held by others. THEVA shall not be liable for any claims against the Customer arising from such patent or license rights.
2. The acceptance of a purchase order, submittal or quotation, or supply of products, services or equipment does not con-stitute an offer nor imply the obligation of THEVA to make any patents, patent rights, or license to manufacture available to the Customer or any third party having a contractual relationship with the Customer with respect to any item supplied by THEVA.
3. All drawings, unique techniques and inventions made by THEVA, its agents or employees in the fulfillment of any con-tract shall be and remain the property of THEVA. The same shall hold for the copyrights for software products, operating instructions or other written documentation.

VIII. Law and forum
All contracts and transactions between THEVA and the Customer shall be governed and construed in accordance with the laws of Germany and shall be enforceable only in the court at Munich, Germany.
Ismaning, June 14, 2006
Dr. Werner Prusseit
Managing Director