General Terms and Conditions of Sale and Delivery

1. General

1.1
The following General Terms and Conditions of Sale and Delivery form part of the Purchase Agreement. Any dissenting terms and conditions of or any limitations by the Purchaser shall only apply if the Vendor expressly confirms the same in writing.

1.2
The Purchaser agrees to these General Terms and Conditions of Sale and Delivery by accepting them without objection, however, when the order is placed at the latest.

1.3
Any verbal or written arrangements made prior to the conclusion of the Purchase Agreement shall only form part of the Purchase Agreement if expressly declared in the latter.

2. Quotations

2.1
The Vendor’s quotations shall not be binding with reference to price, quantities, delivery time and deliverability.

2.2
The Vendor’s supply commitment becomes effective not earlier than with written transmission of a confirmation of the order, an invoice or a delivery note to the Purchaser.

2.3
The Vendor is entitled to accept an order placed by the Purchaser within two weeks from receipt. The acceptance shall be declared either in writing or by delivery of the contract goods to the Purchaser.

2.4
The Vendor reserves the right to withdraw from the Purchase Agreement in case of impossibility to obtain raw material in time or at specification. In such case, the Vendor shall notice the Purchaser without undue delay, and shall reimburse prepayments immediately.

3. Price, Charging, Terms of Payment

3.1
The prices valid at the time of delivery are charged plus shipping and plus value added tax at the statutory rate. If the period of time from the conclusion of the Purchase Agreement to the agreed delivery date is more than four months, and in case the Vendor did overall increase his prices, the Purchaser is entitled to withdraw from the Purchase Agreement within two weeks from notification of the price increases, unless the price increase is exclusively due to an increase in shipping fees.

3.2
The authoritative determination of the weight for charging purposes is carried out at shipping premises at the Vendor’s supplying factory, unless the Purchaser requests the goods to be weighed by the railway authorities at the departure station at its expense. A bulk deviation of ± 3% per shipment unit of the total order quantity shall be tolerated

3.3
Unless otherwise agreed, invoices must be settled within 30 days from the invoice date without any deduction. Should Purchaser default on agreed payment terms in at least one case, it remains to the Vendor to shorten the term of payment. If the term of payment is overrun, the Vendor is entitled to recover default interest at the statutory rate without the need to a warning notice.

3.4
If reasonable doubts rise about the Purchaser’s ability to pay or its creditworthiness and if the Purchaser, despite the Vendor’s demand in this case, is not prepared to pay in advance or to deposit an appropriate security for its consideration, the Vendor is entitled to rescind the Agreement unless it has already delivered the goods.

3.5
The Vendor assigned all claims arising from transactions with the Purchaser to EUROFACTOR AG. Therefore payments with relieving effect can only be made to EUROFACTOR AG. Payments are considered as effected once the amount is irrevocably paid into an account of EUROFACTOR AG.

3.6
The Vendor reserves the right to devote the Purchaser's payments to settle the oldest outstanding debts from transactions with the Purchaser, plus the respective accrued default interest and expenses in the following order: expenses, interest, and principal claim.

3.7
The Purchaser may exercise any set-off or retention against claims of the Vendor only with such counterclaims, that shall have been conclusively determined by a court or expressly acknowledged by the Vendor.

4. Delivery, Delays

4.1
If no fixed date or period of delivery has been agreed, the Vendor’s period of delivery shall begin upon receipt of the confirmation of the order by the Purchaser, however under no circumstances before clarification of the necessary details for the execution of order by the Purchaser.

4.2
The Vendor’s delivery commitment shall be suspended, if the Purchaser defaults in performing one of its commitments [see para. 3.6 above].

4.3
In case of partial deliveries, which are not called off according to the agreement, the Vendor may at its own option rescind from such partial performance or carry out a subsequent delivery without prior notification to the Purchaser.

5. Force Majeure, Contractual Obstacles

Force majeure of any kind, unforeseeable disruption to factories, transportation or logistics facilities, damage by fire, floods, unforeseeable shortage of manpower, energy, raw materials or auxiliary materials, strikes, lock-outs, orders by the authorities or other obstacles beyond the reasonable control of the party obliged to fulfill an obligation (e.g. deliveries from third parties), or circumstances which reduce, delay or prevent the manufacture, shipment, acceptance or use of goods or make this unreasonable, release the party from its obligation to deliver or accept the goods for the duration and extent of the disruption. If the failure or delay in the performance of the party’s obligations exceeds a period of eight weeks, both parties are entitled to withdraw. If the Vendor’s sources of supplies partially or totally cease to exist, the Vendor is not obliged to get hold of goods from other suppliers. In this case the Vendor is entitled to allocate the available quantities of goods at its reasonable discretion, taking into account its own requirements, and to withdraw from the Agreement for the rest.

6. Shipment, Passing of Risk

6.1
The vendor retains the right to determine the dispatch type and sequence and the carrier. The Purchaser shall bear the cost and risk for other shipping arrangements it demands. The same shall apply to increases in the freight rates or potential cost overrun for diverting freight, storage etc., provided that such increase or overrun occur after the conclusion of the Agreement, and unless carriage paid conditions in respect of goods have been agreed.

6.2
The day on which the goods leave the factory shall be deemed to be the delivery day, and, if this day cannot be determined, the relevant day is the one on which the goods are made available to the Purchaser.

6.3
The risk for destruction or loss of the goods, or for damage to the goods shall pass onto the Purchaser at handing over to the carrier or any other person determined to perform delivery or, in case of pickup by the Purchaser, once the goods are made available for pickup.

7. Retention of Title

7.1
The goods which are supplied remain the property of the Vendor until the Purchaser has discharged all claims arising from the mutual business relationship (goods delivered under retention of title).

7.2
The Purchaser shall immediately notify the Vendor in case a third party will seize the goods or in case the goods are damaged or destructed. The Purchaser has to announce any change in ownership of the goods or change of address of its company without undue delay.

7.3
In case of the Purchaser’s default on contract, particularly in case of a delay in payment or an infringement of the obligations set forth in para. 7.2, the Vendor is entitled to demand back the goods and to withdraw from the Agreement.

7.4
As long as the Purchaser duly fulfils its obligations towards the Vendor, it is entitled to dispose of the goods delivered under retention of title within the ordinary course of business. Extraordinary disposition, e.g. pledging of goods or transfers by way of security, is impermissible. The Purchaser hereby assigns to the Vendor all claims arising from the resale of the goods delivered under retention of title against third parties up to the amount of outstanding debts. The Vendor hereby accepts such assignment. The Vendor shall be authorized to collect any receivables arising from the resale. The Vendor reserves to collect the receivables by itself in case of the Purchaser’s delay of payment.

7.5
If the Vendor's goods are processed, mixed or merged with other materials of the Purchaser or of a third party, it is understood that the Purchaser is acting by order and for account of the Vendor, and the Vendor shall acquire joint ownership of the products manufactured in this way in proportion to the invoice value of the Vendor’s goods delivered under retention of title and the other processed or mixed goods.

7.6
It is not necessary to withdraw from the contract to assert the right of retention of title unless the subpurchaser is a private consumer.

7.7
The Vendor assigned its claims arising from the Purchase Agreement to EUROFACTOR AG it is understood that such assignation includes without limitation all rights remaining to the Vendor out of the retention of title in all its particulars as stipulated above.

8. Liability

8.1
Any claims made by the Purchaser for compensation for direct or indirect damage against the Vendor and its agents, including accompanying and consequential damage, are excluded. This shall not apply for damage resulting from an infringement of the legal objectives of life, body or physical health, or a breach of essential contractual obligations. Further the exclusion of liability shall not apply in case of a fraudulent misrepresentation of faults of the goods, or in case the goods shall lack a characteristic that the Vendor has expressly guaranteed, or in cases of willful misconduct or gross negligence on part of the Vendor or its agents.

Mandatory legal liability stipulations shall not be affected by this.

8.2
Warranty claims based on lack of quality expire within one year of delivery date, except in case of a fraudulent misrepresentation of faults of the goods, or in case the goods shall lack a characteristic that the Vendor has expressly guaranteed.

9. Objections

9.1
A notice of defect will only be accommodated if it is made immediately in writing, at the latest, however, within 14 days of receiving the goods. The notice shall clearly specify the kind and amount of the alleged defect. Accompanying the notice receipts, samples and packing labels must be sent in, and the invoice number and the initials/signatures situated on the packing have to be quoted. This does not apply in case of a fraudulent misrepresentation of defects.

9.2
In the case of hidden defects, a written notice of defect must be made immediately after the defect has been discovered, at the latest, however, within five months after the receipt of the goods, except in case of a fraudulent misrepresentation of defects. The period of limitation of claims according to para. 8.3. shall not be affected hereby.

10. Data Handling

The Vendor is entitled to collect, store, process and make use of information and data relating to the Agreement, and to transmit such data to EUROFACTOR AG for storage, processing and use in the collection of assigned debts.

11. Technical Advice, Use and Workmanship

Advices given to the Purchaser by the Vendor spoken or in writing are not legally binding. It does not release the Purchaser from carrying out its own examination of the product supplied to test its suitability for the intended process or the intended use.

Any product responsibility of EUROFACTOR AG is excluded.

12. Place of Performance, Place of Jurisdiction, Applicable Law

12.1
Unless otherwise agreed, the place of performance for payment is the payee’s registered place of business. The place of jurisdiction is beside the Vendor’s general place of jurisdiction also Oberhaching near Munich for EUROFACTOR AG.

12.2
The Agreement shall be subject to the laws of the Federal Republic of Germany to the exclusion of UN purchase laws. Also the regulations of the UN-Convention for assignment of claims in international commerce shall apply from the time when those regulations are coming into effect.

May-07