TERMS OF SALE AND DELIVERY

These terms of sale and delivery shall also apply to all future deliveries

1.0 General Terms and Scope of Applicability

1.1 Our terms of shall apply exclusively. This shall also apply to all future deliveries, and also in those cases in which no special reference is made to them. We will not accept contradictory terms of the customer, and any other terms of the customer, which differ from our terms of delivery, unless we have given express written approval to their applicability. Our terms of delivery shall also apply if we carry out deliveries to the customer without any reservation, in the knowledge of terms of the customers that are contradictory to our terms of delivery or differ from them. By accepting the subject of delivery, the customer acknowledges the applicability of our terms of delivery in every respect.

1.2 If any individual terms should be legally invalid, it shall not affect the legal validity of the remaining terms and of the agreement.

1.3 All understandings that are made between the customer and us for the purpose of execution of this agreement are to be included into this agreement in writing.

1.4 The scope of applicability of our terms of sale and delivery toward professional businessmen shall be subject to § 310, section 1, of the Civil Code of the Federal Republic of Germany.

2.0 Quotation – Quotation Documents

2.1 Our quotations are always subject to confirmation.

2.2 Orders shall not be binding to us unless we acknowledge such orders or execute them by delivering the goods, additional oral agreements shall not be binding unless we give our written approval to them.

2.3 We reserve the right of minor differences between the goods or their design and the information and specifications in our catalogues or quotations. Warranties and warranted properties shall be deemed to exist only if we have expressly quoted such properties. In any other case, dimensions, weight, performance, quality and other information, etc., as well as pictures and other technical information – including such information quoted in catalogues, letters, quotations, acknowledgements of orders and invoices, shall in no case be binding to us.

3.0 Prices

3.1 In generally, our prices are “ex works“ Straubenhardt and do not include packaging, unless otherwise specified in the acknowledgement of order. Even if our vehicles are used for transport, delivery and transport of the goods shall always be carried out to the risk of the customer.

3.2 We reserve the right to increase our prices accordingly, if increases in costs should occur after the conclusion of the agreement, especially if such increases are caused by wage settlements or increases in material prices. We will submit evidence for such increases to the customer upon request.

3.3 Our prices are net prices, VAT not included.

3.4 The minimum value of one order shall be EUR 500.00 net value of the goods. We will charge an additional fee of EUR 25,00 for the execution of orders of minor quantities if the value of the goods is below EUR 500.00.

4.0 Terms of Payment

4.1 Unless otherwise provided in the acknowledgement of order, the purchase price shall be payable without any discount within thirty days from the date of invoice. We reserve the right to deliver to new customers only with payment in advance or payment on delivery.

4.2 Deduction of a discount shall be impermissible unless it has been agreed upon in writing or expressly quoted in the invoice, and unless the payment is made within the quoted period. Any deduction of the discount shall be excluded unless all other payment obligations from invoices dated more than thirty days before the date of the current invoice have been settled.

4.3 Payment by bill will be accepted only upon our express approval. Cheques and bills are accepted only as an undertaking to pay. The customers shall bear all expenses and costs as well as the risk for the presentation and the noting and protest of a bill. Deduction of a discount shall be excluded if payment is made by means of a bill.

4.4 If the customer is in default of payment, we shall have the right to claim interests at a rate of five percent above the basic interest rate (§ 288 of the Civil Code of the Federal Republic of Germany). If we are able to provide evidence for a higher damage due to the customer’s default, we have the right to enforce such claim. The customer, however, shall have the right to submit evidence to us that we have not incurred any damage, or that we have incurred a significantly lower damage.

4.5 In the case of default of payment or justified doubts about customer’s ability to pay, we have the right to claim securities or payments in advance for overdue deliveries and to demand immediate settlement of all claims resulting from our business relationship with the customer.

4.6 Set-off against a claim shall be excluded unless such claim is undisputed or has been determined to be legally binding. The customer shall not have the right of retention on the basis of disputed counterclaims.

5.0 Delivery Period – Delay in Delivery

5.1 Quoted delivery periods shall not be binding for us unless we have expressly stated that such periods are binding. The compliance of our obligation of delivery requires the orderly compliance of the obligations of the customer in due time.

5.2 If the customer grants us an adequate extension under warning of refusal when we already are in delay in delivery, he shall have the right to rescind from the agreement if the period of extension has elapsed fruitlessly. The customer shall not have any right to claim compensation of the amount of the predictably damage due to non-compliance unless the delay was caused by wilful action or gross negligence. In general, our liability for damage is limited to 50% of the incurred damage. The aforesaid liability limitation shall not be applicable if a commercial short sale has been agreed upon. Such limitation neither shall be applicable if the customer is able to plead that his interest in the performance of the order has ceased to exist.

6.0 Part Deliveries – Default of Acceptance

6.1 We have the right to carry out part deliveries if no particular agreements have been made.

6.2 If the customer is in default of acceptance, or if he violates other cooperation obligation, we have the right to claim compensation for the damage incurred to us, including additional expenses, if any. In such cases, the risk of accidental loss or accidental deterioration of the subject of purchase shall pass to the customer at the moment in which he gets in default.

7.0 Warranty for Defects

7.1 Precondition for our customers’ title to warranty for defects is the customers’ due compliance with their investigation and complaint obligations provided in §§ 377, 378, of the Code of Commerce of the Federal Republic of Germany. Rejected goods must not be used unless we have given express approval.

7.2 If a defect of the subject of purchase occurs that is within our responsibility, we shall have the right, upon our sole discretion, to eliminate the defect or to deliver replacement.

7.3 If we are not willing to eliminate the defect or to deliver replacement, especially if such elimination or delivery is delayed beyond an adequate period due to reasons within our responsibility, or if an elimination of defects or delivery of replacement fails in any other way, the customer shall have the right, upon his sole discretion, to rescind from the agreement or to claim an adequate reduction of the purchase price.

7.4 Unless otherwise provided in the terms hereinafter, further claims of the customer – regardless of the cause on which they are based – shall be excluded. We therefore do not undertake any warranty for a damage that has not occurred to the subject of delivery itself. In particular, we do not undertake any warranty for lost profit or any other financial loss to the customer.

7.5 The release from warranty as provided in the foregoing terms shall not be applicable if the damage was caused by wilful action or gross negligence. The obligation of compensation, however, shall be limited to the predictable damage. Such obligation shall also be excluded if the customer asserts compensation of damage due to a lack of warranted properties according to the provisions of § 437, nor. 3, of the Civil Code of the Federal Republic of Germany.

7.6 Any other compensation obligation to us that exceeds the scope of liability provided in the foregoing sections (4) and (5) shall be excluded, if legally permissible. In any case, the compensation of damage shall be limited to the predictable damage.

7.7 The warranty period shall be 1 year from the date of passing of risk. This period is a period of prescription and shall also apply to claims for compensation of consequential damage due to defects, unless not claims due to impermissible action are asserted.

8.0 Total Liability

8.1 Any liability beyond those provided in the foregoing section 7 shall be excluded, regardless of the legal kind of the asserted claim.

8.2 The provision under section 1 shall not be applicable to claims provided under §§ 1, 4, of the product liability law. The same applies to claims as provided under § 5 of the Civil Code of the Federal Republic of Germany.

8.3 If our liability should be excluded or limited, this shall also apply to the personal liability of our clerks, employees, correspondents, representatives and agents.

9.0 Reservation of Title

9.1 We reserve title to the subject of purchase until we have received all payments due to the delivery agreement. In any case of an action by the customer that is contrary to the agreement, especially in the case of default of payment, we have the right to recover the subject of purchase. The recovery of the subject of payment shall not be deemed to be a rescission from the agreement unless we have expressly declared such rescission. Upon the recovery of the subject of purchase, we have the right of utilization of the subject of purchase. The profit obtained in such utilization shall be set off against the customer’s obligations after deduction of adequate utilization expenses.

9.2 The customer has to inform us immediately in writing in cases of levy or of any other intervention of third parties, in order to enable us to commence action according to § 771 of the Civil Process Order of the Federal Republic of Germany. If the third party is not able to pay compensations to us for the judicial and extra judicial expenses, the customer shall be liable for the loss we have incurred.

9.3 The customer shall have the right to resell the subject of purchase in the orderly course of business. The customer, however, already now assigns to us all claims to the total amount of invoice (VAT included) to which he has title against his purchasers or third parties due to the resale of the subject of purchase. The customer shall have the right to maintain such title already after an assignment. This shall not affect our right to collect the claimed amounts ourselves. We undertake the obligation to refrain from the collection of the claimed amounts as long as the customer complies with his payment obligations arising from the obtained profits, is not in default of payment, and especially if no bankruptcy or settlement petition has been filed, or if payments have been suspended. In such cases, we have the right to demand that the customer discloses to us the assigned claims and their debtors, provides all information which are required for the collection of claims, submits the corresponding documents and informs the debtor (third party) about the assignment.

9.4 We undertake the obligation to release the securities to which we have title, upon the customer’s request, if the value of our securities exceeds the claims to be secured by more than 20%. We have the right to select the securities to be released.

10.0 Use of Customer Data

10.1 We have the right to save customer data and to process such data internally in our enterprise within the scope of legal terms and provisions, especially in compliance with the provisions of the data protection laws of the Federal Republic of Germany.

11.0 Place of Performance, Place of Jurisdiction, Applicable Law

11.1 Place of performance shall be Straubenhardt, unless otherwise specified in the acknowledgement of order.

11.2 If the customer is a professional businessman, a body corporate of public law, or separate assets under public law, the court, which has jurisdiction for our place of business, shall have exclusive jurisdiction. Nevertheless, we also have the right to file a petition for the commencement of action against our customer with the court, which has jurisdiction for the customer’s place of business.

11.3 German law shall be applicable to these terms of sale and delivery.