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1. Application: The Terms and Conditions outlined below apply to traders, legal entities incorporated under public law and special funds under public law and to all deliveries and services performed on the basis of current and future contracts to the exclusion of any other terms and, unless specifically agreed to in writing by us, including Buyer terms and conditions that differ from these Terms and Conditions, including where such have not been expressly rejected or where we provided goods and services without reservation in full knowledge of such conflicting Buyer terms and conditions.

2. Offers and orders: All of our offers are always non-binding.

Orders only become binding when confirmed in writing by us. The same applies to orders placed with one of our representatives. Additions, amendments or oral agreements require written confirmation by us for legal effect.

3. Call-off orders:

Unless agreed otherwise, call-off orders have to be called off within six months of the first delivery. Failure by the Buyer to call off orders within this period and following receipt of a reminder and extension of the call-off period shall entitle us to demand payment for the order without having to deliver or to completely finish the goods, although said goods have to be finished on receipt of full payment from the Buyer. Under the above circumstances, we shall also be entitled to refrain from finishing the goods in whole or part and – if the order is subsequently not performed – to demand damages for loss of profits of up to 10 % of the agreed price, without prejudice to our right to claim higher damages. In such an event, the Buyer shall nonetheless be entitled to provide proof that no or significantly less damage was incurred. If goods are not called off irrespective of a reminder and an extension of the call-off period, the Buyer shall be liable for the resulting storage costs.

4. Tools: We undertake to keep tools for a period of one year after the last delivery. On notification from the Buyer that he intends to order more goods within a period of one year, the tool retention period will be extended by an additional year. On expiry of this period and if no additional goods have been ordered, we shall be entitled to dispose of said tools at our discretion.

We reserve the right to demand payment of the costs incurred for orders that are cancelled during the development phase or lead time. If cancelled before sample approval, this will include all of the costs incurred in connection with the first set of tools and, if cancelled after sample approval, all of the costs incurred for all of the standard production tools, special equipment and training. Said tools shall be scrapped within a period of four weeks, during which the Buyer shall be entitled to view the same. In order to protect the methods used to design the tools, the Buyer shall not be entitled to view any of the related sequence and design drawings.

5. Prices: Goods are invoiced at the list prices valid on the day of dispatch or collection.

All prices are ex our Heiligenhaus works, and exclude VAT and packaging.

Small orders are subject to a handling fee and are invoiced at the price specified on our price list. Small orders do not qualify for any discounts.

The prices for custom-made products are based on actual production costs.

6. Delivery period and delays: Delivery periods commence as soon as all technical matters and other details pertaining to the contract have been settled, and at the earliest on the date of order confirmation. If the Buyer subsequently delays providing documents and parts or to perform other duties, including the duty to pay, the delivery period will be extended accordingly. The delivery day is the day of dispatch. If delivery is delayed due to causes outside our control, the day the goods are ready for dispatch shall be deemed the delivery date.

If we are unable to deliver goods because of a disruption in our, our suppliers‘ or a carrier company‘s operations that we have been unable to avert despite employing reasonable and appropriate care (e.g. force majeure, disruption of operations or traffic, delays in the delivery of essential raw, auxiliary and operating supplies, energy shortfalls) or because of industrial action such as strikes and lockouts, the delivery period will be extended by the duration of the event plus an appropriate preparatory period. If any of the above circumstances make it impossible to deliver goods, our duty to deliver and the Buyer’s payment obligation shall become null and void to the exclusion of any damages. This also applies if said events occur at a time during which we are in default of delivery, unless said default is the result of deliberate action or gross negligence.

If delivery is delayed due to causes under our control, we shall not be liable for damages for ordinary negligence. The Buyer shall only be entitled to claim damages instead of performance where delivery is delayed through deliberate action or gross negligence. The liability limitation in accordance with this section does not apply where agreed transactions are based on a fixed delivery date or if our neglect of duty has caused the Buyer to no longer have an interest in the contract’s performance or material contractual duties have been breached. However, our liability in cases of gross negligence is limited to foreseeable damage typical of the contract concerned.

The Buyer shall only be entitled to withdraw from the contract if delivery is delayed due to causes under our control and following the unsuccessful expiry of a reasonable extension of the delivery period.

We shall be entitled to partial deliveries.

7. Delivery method and transfer of risk: We deliver goods at our discretion by rail, mail or through forwarding agents.

If a Buyer requests goods to be delivered to him or to another place, the risk of accidental perishing or accidental damaging of good shall pass to the Buyer as soon as the goods leave our works. If dispatch is delayed due to causes under the Buyer’s control, these risks shall pass to the Buyer on the date the goods are ready for dispatch.

8. Packaging: We select all packaging at our discretion and provide it at cost price.

We will accept all transport packaging returned to our registered office in Heiligenhaus at the Buyer’s cost without such entitling the Buyer to a credit note.

9. Material defect claims and liability: The properties of the goods are based solely on the agreed technical delivery specifications. Images, drawings, dimensions, weights and colours shown in catalogues, price lists and other printed materials constitute approximate values customary within the industry. We furthermore reserve the right to make technical changes and other modifications required for design purposes. The product specifications (design, dimensions etc.) for orders for custom-made products have to be confirmed in writing for legal effect. The quantity of goods supplied by us is permitted to deviate up or down by 10 %.

If the supplied goods have been manufactured to drawings, specifications, samples or other data provided by the Buyer, the Buyer shall bear the fitness for purpose risk.

The goods’ condition as at the point at which the risk passes to the Buyer in accordance with section 7, para. 2, shall be decisive with regard to the goods’ condition as specified in the contract.

We do not accept any liability for material defects caused due to unsuitable or improper use, wrong assembly or commissioning by the Buyer or third parties, normal wear, wrong or careless treatment, or for the consequences of inappropriate modifications that have not been authorized by us or of Buyer or third party repairs. The same applies to defects that only marginally impact on the value or capabilities of the goods.

The Buyer must examine the goods on receipt for potential defects and notify us immediately in writing and at the latest within eight days of the goods’ receipt of any obvious defects, and of non-obvious defects immediately following their detection.

If a notice of defect submitted within the specified period and form is justified, we shall have a duty to either repair or replace the good for free at our discretion. If the repair or replacement delivery fails or is disproportionate to the value of the goods or if not performed within a reasonable period of time specified by the Buyer, the Buyer shall be entitled, at his discretion and to the exclusion of further claims for damages, to either withdraw from the contract or demand a reduction of the purchase price. Buyers cannot withdraw from contracts for custom-made goods.

Notices of defects shall lapse after a period of 12 month.

The Buyer shall not be entitled to claim any other compensation, irrespective of the legal ground, in particular compensation for damage other than to the supplied goods themselves, for loss of profits and compensation for financial losses, unless such damage was caused by deliberate intent, gross negligence or negligent breach of material contractual duties. Where material contractual duties are breached through ordinary negligence, we shall only be liable for the foreseeable damage typical of the contract concerned. This liability limitation does not apply to liability for damage to persons and privately used objects caused by faulty goods as specified under the Product Liability Act. Nor does it apply to damage to life, person or health and to the absence of warranted characteristics if and to the extent that the warranty’s purpose was to protect the Buyer against damage other than to the supplied goods themselves.

10. Payment: Our invoices, including for partial deliveries, are payable net, post-paid and free of charge, within 30 days of the invoice date. Cashless payments shall be deemed received on the date of receipt. The risk associated with the method of payment shall be borne by the Buyer.

Agreements about special payment terms will only become binding on written confirmation by us. Special payment terms will only be granted if Buyers have met all outstanding payment obligations from previous deliveries and if invoice amounts have been paid on time within the above payment period.

In the event of default in timely payment on a payment due date, all other outstanding payments not yet due shall become immediately payable. Outstanding payments will be subject to an annual interest charge of 8 % above the basic interest rate in accordance with Section 247 of the German Civil Code. This shall not affect our right to claim damages for default.

11. Retention of title: We reserve the title to all supplied goods until full payment of all receivables due to us by the Buyer.

The Buyer shall be entitled to resell goods subject to retention of title in the ordinary course of its business, provided he is not in default of payment. However, the Buyer shall not be entitled to pledge, or otherwise assign as a security the goods subject to retention of title. The Buyer must protect our rights to the goods subject to retention of title if these goods are sold on credit.

The Buyer herewith assigns to us by way of security the Buyer’s claims and rights that arise from the resale of goods subject to retention of title. We hereby accept this assignment.

If the Buyer modifies or processes the goods subject to retention of title, then such modifications and processing shall always be deemed performed on our behalf. In respect of goods subject to retention of title that are joined to or inseparably mixed with other objects not owned by us, we shall acquire joint ownership in the new object in proportion to the invoice value of the goods subject to retention of title relative to the other processed or mixed objects at the time of processing or mixing.

If our goods are joined or inseparably mixed with other movable objects to form a new object and if said new object is deemed the principal object, the buyer shall assign ownership or joint ownership in the new object to the extent of his ownership in the principal object to us. The Buyer shall be responsible for the safekeeping of the object owned or jointly owned by us on our behalf. If the new object in turn is joined or mixed, it shall be treated as outlined above for goods subject to retention of title.

The Buyer must notify us immediately of any compulsory enforcement actions by third parties concerning the goods subject to retention of title, the claims assigned to us or other securities and provide us with the documents necessary for the assertion of our rights. The same applies to any other interventions.

If the value of the existing securities exceeds the secured claims by more than a total of 20 %, we shall have a duty to release securities of our choice to that extent upon request.

12. Place of fulfilment, jurisdiction and applicable law: The place of fulfilment is our place of business. The place of jurisdiction for disputes with buyers who are registered traders, legal entities incorporated under public law and special funds under public law is also our place of business. However, we also reserve the right to initiate legal action at the Buyer’s place of business or domicile.

The law of the Federal Republic of Germany applies exclusively to the exclusion of the UN Convention on the International Sale of Goods (CISG).

June 2002