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General Terms and Conditions of Sale and Delivery

A. General

The following Terms and Conditions of Sale shall apply for all present and future deliveries made by the Seller. These General Terms and Conditions of Sale shall be deemed to have been accepted at the latest upon the receipt and acceptance of the relevant goods. Any terms and conditions of the Buyer shall require the written consent of the Seller in order to be valid.

B. Offers and Orders

  1. Offers made by the Seller shall be subject to change without notice with regard to their price, quantity, delivery period and delivery possibility. Delivery conditions of the Buyer shall only be valid if they have been confirmed by the Seller in writing.
  2. Orders placed by the Buyer shall be binding for the Seller if they are confirmed in writing by the Seller or by the execution of the order.

C. Delivery Periods and Delay

  1. Delivery dates shall only be legally binding if they have been expressly confirmed by us in writing. Agreed delivery periods and delivery dates shall be regarded as having been upheld if the delivery has left the production works or warehouse of the Seller by the end of the specified period or if despatch readiness has been confirmed.
  2. If we overstep an agreed delivery date, the Buyer shall set a reasonable period of grace for the delivery in writing. The aforesaid period of grace shall be for a period of at least three weeks. If no delivery is made before the end of the period of grace, the Buyer shall declare within a reasonable period of time whether he/it intends to withdraw from the contract on account of the delivery delay and/or to demand compensation and/or to insist upon delivery.
  3.  Part-deliveries are basically possible. The Buyer may reject part-deliveries if they cannot be reasonably expected. A part-delivery shall be regarded as an independent transaction and shall be charged as such. 
  4. Delivery obligations and delivery periods shall lapse as long as the Buyer is in delay with his/its collaboration obligations or payment obligations in connection with the present or previous transactions. 
  5. If justified doubts arise after the conclusion of the contract with regard to the solvency or creditworthiness of the Customer with the result that we are entitled to withdraw from the contract unless security has been provided or payment is made in cash prior to delivery. 
  6. Force majeure occurrences shall entitle us to postpone delivery for the duration of the impediment and a reasonable start-up period or to withdraw from the contract with regard to the unperformed part of the contract. Strikes, lockouts and other circumstances which materially complicate our delivery or make it impossible shall be equivalent to force majeure. This shall also apply to the lack of deliveries by sub-contractors in particular. 
  7. In the event of a general shortage of goods or a shortage attributable to force majeure, we shall be entitled to effect delivery shortages. In the aforesaid case, the Buyer shall be entitled to request us to confirm whether we wish to withdraw from the contract or wish to supply within a reasonable period. The Buyer shall be entitled to withdraw from the contract if we fail to make any confirmation in the aforesaid respect.

D. Acceptance Delay by the Customer

  1.  If the Buyer is in delay with acceptance, we shall be entitled to withdraw from the contract after having set a reasonable period of grace and to demand compensation instead of performance.
  2. If part-deliveries are made at the request of the Buyer thereby deviating from the contract, we shall be entitled to demand a commensurate price increase.
  3. Orders issued on a call-up basis shall be accepted by the Buyer within six months of our declared readiness to deliver.

E. Delivery, Despatch and Transfer of Risk

  1. Unless otherwise agreed, the type of despatch, the transport route and the carrier shall be at the option of the Seller.
  2. Our delivery obligation shall be regarded as having been performed when the goods leave our production works or warehouse or when they are handed over to the carrier. Risk shall pass to the Buyer at the aforesaid point of time.

F. Size, Weights and Delivery Quantities

  1. The sizes, weights and quantities specified in the shipping documents of the delivery works or warehouse shall be relevant for the ultimate charge, with customary deviations within the trade being acceptable. Complaints shall be notified in writing at the latest within 3 working days after receipt of the goods at the place of destination.
  2. For deliveries of liquids with tankers, the records of the calibrated measuring equipment on the transport vehicles shall apply if the goods are supplied by our tankers or by a forwarder specifically commissioned by us. G. Prices and Charges 1. The prices in force on the date of despatch shall be charged for our deliveries. 2. Unless otherwise agreed, all costs and charges associated with the despatch shall be for the account of the Buyer.
  3. Freight-free prices shall apply on the assumption of unhindered transport routes. Special supplementary costs, e.g. on account of high or low water or ice, etc., shall be for the account of the Buyer. The same shall apply for off-loading, landing charges and any other costs charged in addition to the actual freight.
  4. If freight charges, levies or any other despatch costs are changed or newly introduced after having agreed the price, we shall be entitled to increase the agreed price by any such additional costs.
  5. In the case of deliveries abroad, the Buyer shall bear all the charges and costs connected with the goods crossing the relevant border or borders.

H. Payment and Offsetting

  1. Unless otherwise agreed in writing, payment shall be made immediately after receipt of the relevant invoice. The delivery or invoice date shall apply for the agreed payment and cash discount periods. In order to comply with the aforesaid periods, it is necessary that we have received the invoiced amount on the last date of the period. 
  2. If the specified period is overstepped, we shall be entitled to charge interest at the rate charged to us by banks for current account overdrafts commencing on the relevant due date, namely at least 8 % above the base rate in the case of companies and 5 % above the base rate in the case of private consumers.
  3. We shall be entitled to apply payments as settlement of the oldest accounts receivable, plus accumulated default interest and costs - in the sequence of costs, interest and the main claim. Claiming cash discounts on new invoices is not permitted as long as older accounts are still unsettled.
  4. Our representatives and employees are only entitled to take receipt of settlements from customers if they are able to prove a commensurate power of attorney by means of appropriate deeds.
  5. Payment by bills of exchange shall only be permitted with our prior agreement. Bills of exchange and cheques shall only be accepted as conditional payment. All expenses and charges, etc., incurred as a result of accepting bills of exchange shall be for the account of the Buyer.
  6. In the event of non-compliance with the payment terms and conditions or if facts or circumstances become known which question the creditworthiness of the Buyer, we shall be entitled to declare all our claims to be due immediately regardless of any agreed payment terms, postponements or discounted bills of exchange.
  7. The Buyer shall only be entitled to offset undisputed claims or claims established by declaratory judgement.

I. Reservation of Title

  1. All goods delivered by us shall remain our property (reserved goods) pending receipt of all our claims regardless of their legal cause, especially up to the collection of all cheques or bills of exchange given in payment by the Buyer even if payments have been made for specially designated claims.
  2. Reserved goods shall be insured by the Buyer against normal risks until full and complete settlement of the purchase price.
  3. Any adaptation or processing of the reserved goods shall be carried out on our behalf as manufacturer within the meaning of § 950 of the German Civil Code without any obligation on our part. If our reserved goods are processed by the Buyer together with other goods not belonging to us, we shall be entitled to co-ownership of the new goods in the ratio of the value of the reserved goods to the other processed goods at the time of processing. The same shall apply as for reserved goods with regard to new goods arising from the processing.
  4. As long as the Buyer is not in arrears with his /its payments, he/it shall be allowed to sell the reserved goods in the ordinary course of business on his/its normal terms and conditions of business; this shall not apply, however, if an assignment ban on the purchase price has been agreed by the Buyer and his/its customer. If reserved goods are resold, the Buyer shall make the transfer of ownership dependent upon full and complete payment of the goods by his/its customer.
  5. If the Buyer is in arrears with his/its payment obligations or if he/it fails to comply with the reservation of title provisions set out in this Section, we shall be entitled to forbid the resale of reserved goods, to demand repossession and to collect the reserved goods at the cost of the Buyer.
  6. The claims of the Buyer from the resale of reserved goods shall be assigned to us at the time of delivery regardless of whether the reserved goods are sold to one or more customers without or after adaptation or processing.
  7. If the reserved goods are sold by the Buyer together with other goods not belonging to us, the assignment of the purchase price of the resale shall only apply to the invoice amount of our reserved goods which have been sold. If the reserved goods are sold after processing, especially after processing with other goods not belonging to us, the assignment shall only apply in the amount of our co-ownership of the goods sold.
  8. If the reserved goods are used by the Buyer in performance of a contract for the delivery of goods or services, the claim arising from the contract for the delivery of goods or services shall be assigned to us in advance in the same amount as specified in No. 6 for purchase price claims.
  9. The Buyer shall be entitled to collect claims arising from the resale until revocation on our part which is permitted at any time. We shall, however, only make use of our revocation right in the cases referred to in Section H, No. 5. The Buyer is not authorized to assign claims to third parties. At our request, the Buyer is obliged to inform his/its customers of the assignment and to provide us with all information and documents required for collection purposes.
  10. The Buyer shall not be entitled to pledge reserve goods, nor to transfer them by way of assignment, nor to encumber them in any other way.

J. Quality of the Goods, Consultation and Use

  1. The qualities set out in the relevant product descriptions, specifications and identification marks shall apply exclusively with regard to the specific qualities of our goods. Deviations shall be permitted if the suitability of the goods in question for the normally envisaged use is not materially impeded. Public comments, recommendations or advertising do not constitute information of the specific qualities of the goods purchased.
  2. Application-related verbal and written consultation by our salesmen shall be non-committal and shall not exempt the Buyer from his/its own examination of the goods with regard to their suitability even if the goods are generally recommended for a specific purpose. The suitability of the goods for a specific purpose is not guaranteed without an express written confirmation in the aforesaid respect.

K. Defects and Liability for Defects

  1. Identifiable defects shall be notified to the Seller in writing immediately but at the latest within 14 days after receipt of the goods at the place of destination and hidden defects immediately after their identification. They may only be enforced as long as part of the goods are available unmixed with other goods and, in the case of packaged goods, in the original packaging; a specimen of the rejected goods is to be forwarded to the place of delivery immediately.
  2. In the event of justified complaints, we shall be entitled, at our option, to rectify the defect or to make a replacement available. If the rectification is abortive within a reasonable period of time, the Buyer shall be entitled to reduce the purchase price or to withdraw from the contract. Any compensation claims shall not be limited thereby, taking account of the limitations referred to in the following Section L.
  3. Claims lodged by the Buyer on account of the expenses incurred for the purpose of the aforesaid post-performance, especially transport, travelling, labour and material costs, shall be excluded if the said expenses are increased because the delivered goods were subsequently transferred to a location other than the location of the Buyer unless the aforesaid transfer forms part of the normal use of the goods.
  4. Quality defect claims shall not apply if there is only an immaterial reduction in the value thereof or only an insignificant limitation in the usability of the delivered goods or services.
  5. Claims arising from defect liability shall be statute-barred one year after delivery of the goods unless longer periods are specified by law, especially in the case of goods which were used for a building construction in line with their customary usage instructions and which caused the building construction to be defective.

L. Other Claims and Damage Compensation

  1. Unless agreed otherwise below, all other and additional claims of the Buyer shall be excluded. This shall particularly apply for damage compensation claims on account of breaches of obligations in connection with the contractual relationship and for tort. We shall, in particular, not be liable for indirect damages not sustained by the goods themselves and also lost profits and other financial losses of the Buyer.
  2. The above liability limitations shall not apply in the case of wilful intent, gross negligence on the part of our legal representatives, managers, employees or vicarious agents and also in the event of culpable breaches of major contractual obligations. In the case of culpable breaches of major contractual obligations, our liability shall be limited to typical damages foreseeable when the contract was concluded unless there was wilful intent on the part of our legal representatives, managers, employees or vicarious agents.
  3. The existing liability limitations shall not apply either in the event of injury to life, body or health, when assuming a guarantee or a specific quality risk, in the event of mandatory liability under the German Product Liability Act and in all cases in which the law forbids such liability limitations.
  4. If our liability is excluded or limited, this shall also apply fore the personal liability of our legal representatives, managers, employees or vicarious agents.

N. Hired Creates and Drums

  1. Crates and drums made available by us may only be used for the storage and transport of our products. When they are empty, they shall be returned to us or our nearest warehouse free of freight and other expenses. If hired crates and drums are retained by the Buyer for more than 3 months for reasons not attributable to us, we shall be entitled to charge rent at the rates customary within the industry.
  2. If hired crates and drums are damaged, we shall be entitled to refuse accept their return and shall demand their replacement cost or carry out repairs at the cost of the Buyer or insist on compensation for the appropriate loss in value. Rent shall be payable by the Buyer until the damage claim has been settled. Any loss shall be notified immediately.
  3. For the duration of the transfer, the Buyer shall be required to comply with the statutory and official requirements for the hired crates and drums on his/its own responsibility and at his/its own cost. The Buyer shall be liable for the hired crates and drums transferred to him/it and for the resulting risks from the date of despatch or from the date of readiness to despatch up to the date of their return to our production works or warehouse.
  4. If the Buyer is provided with tanks, output and liter gauging equipment on a hired or rental basis, the aforesaid shall apply correspondingly unless expressly agreed otherwise. Ongoing servicing and maintenance expenses shall be borne by the Buyer.
  5. If drums and transport containers are provided by the Buyer, no liability shall be assumed by us for any defects or damages attributable to their general condition.

O. Closing Provisions

  1. The place of performance for deliveries is the place from which delivery is effected by us. The place of performance for payments is the domicile of our company.
  2. The legal venue for all disputes in connection with our delivery business is the domicile of our company. This shall also apply in respect of legal actions brought in connection with bill and cheque proceedings. This shall also apply for all third parties who or which are liable for the Buyer. The aforesaid legal venue shall also apply if claims are enforced by summary judgement and if the Buyer has changed his/its place of residence or customary place of residence outside the Federal Republic of Germany or if his/its residence or customary place of residence is not known when the relevant legal action is brought. We shall also be entitled to enforce our claims at the legal venue of the Buyer, however.
  3. The laws of the Federal Republic of Germany shall apply for all legal relationships between the Buyer and ourselves. The application of the United Nations Convention in Contracts for the International Sale of Goods (CISG) is excluded.
  4. If individual provisions of these Terms and Conditions of Delivery are or become invalid, the validity of the other provisions shall remain in full force and effect. The contracting parties shall undertake to agree a new provision which comes closest to the original intention of the invalid provision.

Zeller+Gmelin GmbH & Co. KG

July 2009