General Terms of Sale, Delivery and Payment Crespel & Deiters GmbH & Co. KG

I. General

1. The following terms and conditions shall only apply to persons or legal entities or to partnerships with legal personality when acting in their commercial or self-employed capacity (entrepreneurs) at the time the contract is concluded.

2. Conflicting, deviating or supplementary terms and conditions laid down by the buyer shall not be recognized unless previously and expressly approved by us in writing. Our terms and conditions shall also apply in the case of us supplying the buyer without reservation after having been informed of conflicting or deviating terms and conditions on the part of the buyer.

3. Our terms and conditions shall also apply to any and all future contracts with the buyer. In each case the version valid at the time of the contract conclusion is applicable. Deviating individual agreements shall take precedence over these terms and conditions.

4. German law shall exclusively apply in every case including the UN Convention on Contracts for the International Sale of Goods (CISG).

II. Conclusion of a Contract

1. Our quotations are subject to change and are non-binding, unless we have explicitly designated them as binding.

2. Upon placing an order for the required goods, the buyer makes a binding offer to enter into a contract.

3. We shall be entitled to accept the offer constituted by the purchase order within two weeks either by sending an order confirmation or by sending the ordered products within the same period.

4. The contract shall be concluded with the proviso that, if we ourselves are not correctly or properly supplied, we are not obliged to fulfil the contract, or may only partially fulfil the same. This shall only apply if we are not responsible for the failure to deliver.

We will notify the buyer immediately if the goods are not available or only partially available and return all advance payments of the buyer immediately.

5. If the buyer cancels the contract without legitimate cause, we are entitled to claim liquidated damages caused by the cancellation in the amount of 20% of the gross sales price, notwithstanding our right to claim further damages actually occurred. The buyer is entitled to prove that we have sustained no or only a minor loss from the order cancellation.

6. We hereby reserve all our proprietary and intellectual property rights as well as copyrights to any and all illustrations, calculations, recipes, drawings and other documentation given to the buyer or his employees. The buyer and his employees may only disclose such items to third parties with our written consent, regardless of whether or not we have designated such items as confidential. The same shall apply to the transmission of information relating to our products which we have made available to the buyer and his employees. This does not apply with regard to information that (i) is generally known or becomes generally known without any fault on the buyer’s part, (ii) has been handed over to him by a third party not bound by any confidentiality obligation, (iii) the buyer has to disclose because of a judicial or administrative decision.

III. Financial Standing

1. In the event that, following conclusion of a contract, information is obtained that the buyer’s financial situation has deteriorated considerably to the extent that the allowance of credit would no longer be justified (e.g. insufficient credit insurance), we shall be entitled to request a security (e.g. advance payment) on due and/or undue demands resulting from contracts unfulfilled on our side, even if payment has already been effected by bill of exchange. Should the buyer fail to meet such a request in time, we shall have the right to withdraw from the contract and to seek compensation for its non-fulfilment. The obligation to supply may be rejected until such advance payment or provision of securities has been effected. Regulations by the German Insolvency Law and the Receivership Law remain unaffected.

2. A material deterioration with regard to the buyer’s financial standing can especially be assumed in the case of a handing over of bad cheques, protesting of bills of exchange, futile seizures, forced administration, suspension, application or opening of insolvency proceedings.

IV. Prices

1. Statutory VAT is not included in the stated prices. It shall be listed separately in the invoice at the legally valid rate on the day of our performance of the delivery.

2. In the case of any third party increasing, reducing or newly implementing any tax rates, duties, freight rates, fees and other charges concerning the delivery subsequent to the conclusion of the contract, such costs shall be borne by/credited to the buyer.

V. Delivery

1. The general delivery conditions are “FCA Ibbenbüren” Incoterms 2010, if not agreed otherwise individually. We attempt to take the buyer’s wishes and interests with regard to the mode and route of dispatch into account. The buyer shall bear any additional costs (e.g. for express delivery) incurred as a result thereof, even if carriage-paid delivery has been agreed.

2. If the transport is delayed at the buyer’s request or through the buyer’s fault, we shall store the goods at the buyer’s own expense and risk. In such an event the notification of readiness for dispatch shall be deemed equivalent to dispatch.

3. Information regarding delivery dates or periods shall be deemed to be non-binding unless explicitly designated as binding. The delivery period specified by us shall only commence once all technical issues have been resolved with the buyer. The buyer will also meet all his obligations in an orderly and timely manner.

4. If the underlying purchase contract constitutes a transaction for delivery by a fixed date as defined by § 286 Paragraph 2 No. 4 of the German Civil Code (BGB) or § 376 of the German Commercial Code (HGB), our liability shall be defined by the statutory provisions. The same shall apply if, as a result of a delay in delivery for which we are responsible, the buyer may claim to be no longer interested in the fulfilment of the contract. In such an event, our liability shall be limited to the foreseeable, typically arising damage, unless the delay in delivery results from a deliberate or grossly negligent breach of contract for which we are responsible. We are also held to be responsible for a default on the part of our representatives or vicarious agents.

5. If a delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation, the breach of which endangers the purpose of the contract – whereupon we are also held to be responsible for default on the part of our representatives or vicarious agents -, we shall be liable according to the statutory regulations, with the proviso that, in such a case, our liability for indemnification shall be limited to the foreseeable, typically arising damage. If the delay in delivery does not constitute a breach of a material contractual obligation we are only liable according to this provision in cases of intentional or grossly negligent behaviour/ omission.

6. Even if due dates and time limits have been agreed bindingly, we are not responsible for
delays in delivery and performance due to force majeure, strikes, riots, actions by authorities and other unpredictable, unavoidable and serious events (e.g. shortage of material or working material, difficulties in transport or energy supply) – also if these events happen to our suppliers or their sub-suppliers. In the aforementioned cases we are entitled to postpone the delivery resp. performance for the duration of the obstacle plus an adequate start up period. We can only plead these mentioned obstacles if we have informed the buyer immediately about the obstacles. Legal cancellation rights are not affected by this provision.

7. Within the delivery periods and terms stated by us we shall be entitled to render partial deliveries and partial performances insofar as this is tolerable for the buyer.

8. Should the buyer delay official acceptance of the goods, we shall be entitled to demand compensation for any losses or additional costs incurred. The same shall apply if the buyer is in culpable breach of his obligation to cooperate. The risk of accidental deterioration or loss shall be transferred to the buyer as soon as he is in default of acceptance resp. in debtor’s delay.

9. Deliveries made by lorry and/or waggon shall be unloaded by the buyer immediately. In case of the buyer’s culpable failure to unload the goods, demurrage will be charged after two hours waiting time. Other costs caused by buyer’s culpable delay or failure to unload will be charged on the basis of expenditure.

VI. Notice of Defects/Guarantees

1. The buyer shall be obliged to inspect the delivered goods for any apparent defects. Upon delivery the buyer shall also be obliged to check the documentation accompanying the goods in order to verify conformity with the purchase order details relating to the goods. Complaints relating to the quantity of goods delivered and/or any other form of shortfall or damage are to be noted as ascertained facts on the consignment note and/or transport documents at the time of acceptance of the consignment and to be confirmed by means of the driver’s signature.

After receipt of the goods at the point of destination, the buyer has to notify us immediately in writing of any apparent defects stating in detail the nature and extent of the defects. Defects that become apparent at a later date have to be notified immediately after detection, stating in detail the nature and extent of the defects. The date of our receipt shall decide about the timeliness of the notice of such a complaint.

Defective goods shall be provided to us at the premises of the buyer for our inspection.

In the event of any infringement of the buyer’s duty to inspect or complain, the goods shall be deemed to have been accepted in consideration of the respective defect.

2. With regard to defects of the delivered goods, we hereby, first of all, warrant either to remedy the defect or to replace the consignment at our discretion. In the case of replacement, the buyer shall be obliged to return the defective good(s). Expenses incurred in remedying the defects, most notably transportation, labour costs and costs of materials as well as travel expenses shall be borne by us provided that such costs are not increased by purchased material/object(s) being transported to a destination other than the place of fulfilment.

3. In the event that the defect may not be remedied within a reasonable period of time or that two attempts to remedy the defect or provide a replacement fail for whatever reason, the buyer shall, at his own discretion, be entitled to ask for a lower price for the goods (price reduction) or withdraw from the contract. Failure to remedy the defect shall only then be deemed to have occurred if, after being granted sufficient opportunity to remedy the defect or supply a replacement, the desired results are not achieved, a remedy or replacement consignment proves to be impossible, we refuse or unreasonably delay such a remedy or replacement consignment, there is reasonable doubt as to the prospects of success, or if other reasons constitute a hardship.

The buyer shall not be entitled to withdraw from the contract on the grounds of a minor breach of contract, especially with regard to minor defects.

4. Should the buyer opt to withdraw from the contract on the basis of a defect of title or a material defect after a failed supplementary performance, he shall only be entitled to require compensation according to Section VII.

5. Claims relating to defects in respect of the delivered goods shall become statute-barred within one year of the goods being delivered. The statutory limitation periods shall apply in cases where we can be charged with grossly negligent or intentional behaviour. The limitation period in the cases of delivery regress according to §§ 478, 479 German Civil Code remains unaffected.

VII. Liability

1. In accordance with the statutory provisions, we shall bear unlimited liability for damage to life, limb and health based on a negligent or intentional breach of duty on our part, on the part of our legal representatives or our vicarious agents, and for damages subject to liability pursuant to the applicable product liability law We shall be liable to the extent provided for by law for damage which is not covered by Clause 1 and which is based on an intentional or grossly negligent breach of duty or malice on our part as well as that of our legal representatives or our vicarious agents. To the extent that we have issued a guarantee as to quality and/or durability with respect to the goods or parts thereof, we shall also be liable in the context of that guarantee. However, we shall only be liable for damages which are based on the absence of the guaranteed quality or durability, but which do not directly occur in the goods themselves, if the risk of such damage is clearly covered by the quality and durability warranty.

2. We shall also be liable for damage caused by ordinary negligence, if such negligence relates to the breach of contractual obligations which endanger the achievement of the contract purpose (essential obligations). However, we shall only be liable if the damage is typically associated with the contract, and is predictable.

3. All other forms of liability shall be excluded, regardless of the legal nature of the claim asserted. This shall apply, in particular, to claims in tort, or claims for compensation for futile expenditure in lieu of performance; this shall not affect our liability pursuant to Section V No. 4 to Section V No. 5 of this contract. Any exclusion or limitation of our liability shall also apply to the personal liability of our white-collar and blue-collar employees, co-workers, representatives and vicarious agents.

4. Claims for damages asserted by the buyer in respect of a defect shall become statute-barred one year after delivery. The statutory limitation periods shall apply in the event of injury to life, limb or health caused by ourselves, our legal representatives or our vicarious agents, nor shall it apply if we, or our legal representatives, have acted in an intentional or grossly negligent manner, or if our ordinary vicarious agents have acted in an intentional manner.

VIII. Payment

1. Unless otherwise agreed, all invoices are payable net within 7 days of date of invoice. Payment is to be effected by cashless transaction.

2. In addition, we shall be entitled, from the due date, to levy late payment interest amounting to 8% above the base interest rate, and to debit all costs incurred as a result of issuing payment reminders. We reserve the right to verify and assert a higher level of losses related to the delayed payment.

3. A complaint lodged by the buyer shall not release him/her from any duty to effect payment. With the exception of uncontested or legally assessed claims, the buyer shall not be entitled to withhold payment or offset such payments against any counterclaims he/she may be enforcing. Incoming payments shall amortise outstanding debts in the order in which they have occurred.

4. In case the Buyer is responsible for the late payment all our other claims towards the Buyer can be put due.

IX. Right of Retention

1. The goods shall remain our property according to § 449 German Civil Code (BGB) and in consideration of the following supplements until full payment has been effected.

2. The buyer’s purchase price or labour cost claims deriving from the resale or processing of the goods delivered by us, together with all ancillary rights, are herewith assigned to us in advance. In the event that the buyer should sell the goods to which we have reserved title together with other goods to which we do not have title, the assignment of the claim, or assignments of the claims, shall only apply to the extent of the value of the goods which we have delivered. All processing, handling or conversion of the goods by the buyer shall be performed on our behalf and by our order. Should the goods be processed or converted with the help of objects or materials that do not belong to us, we shall acquire a part ownership of the new article which shall represent the proportionate value of the goods supplied by us to the other processed or converted articles. The same shall apply in cases where the goods are mixed with other objects or materials that do not belong to us.

3. The buyer shall only be entitled to resell or process the goods supplied by us in the ordinary course of business and under the presupposition that the purchase price or wage claims from such resale be transferred to us in accordance to section 2. Should the buyer be in payment arrears, he must obtain our specific consent in order to dispose of those goods in respect of which full payment has not yet been made.

4. Regardless of the assignment, the buyer shall nevertheless be entitled to collect sums due from the reselling or processing of the goods. Our entitlement to collect sums due shall not be affected by the right of the buyer to do the same. However, we shall not collect sums due provided that the buyer continues to settle his obligations to pay. At our request, the buyer shall be obliged to inform the third-party of the assignment and to present us the necessary documents to assert our rights against said third-party.

5. Our right of retention is contingent on full payment of all receivables arising from our business relations being effected whereby ownership of the goods supplied by us and subject to retention shall then pass to the buyer and the assigned claims shall be due to the buyer. We hereby commit to release the appertaining securities in accordance with the above provisions at our discretion and to the extent that such value exceeds the secured debts by more than 20%; however, this presupposes that the release of securities for such goods or their replacement value occurs once they themselves have been paid for in full.

6. Upon reselling the goods, the buyer himself is to agree with his customer the right of retention on the goods supplied by us and which are subject to our right of retention in order to safeguard our ownership.

7. The buyer shall be obliged to insure our goods to a sufficient extent against fire and theft and to furnish evidence of the conclusion of an insurance policy at our request. The goods are to be stored in such a way that our right of ownership remains unaffected.

X. Reserve of Cession

We hereby reserve the right to assign to third parties any of our existing and future claims arising from the contractual relationship, including any securities that are due to us.

XI. Place of Jurisdiction/Fulfilment

1. In the event that the buyer is a businessman, a legal entity founded under public law or a public utility, the sole place of jurisdiction for all disputes arising from this contract shall be at our place of business. The same shall apply in the event that the buyer has no general place of jurisdiction in Germany or his permanent or habitual place of residence is unknown at the time the action is brought. We shall, however, also be entitled to take action against the buyer at his place of residence and/or registered place of business. In the event of a lawsuit outside of Germany which is lost by the buyer, the buyer shall bear our costs necessarily arising out of the prosecution or the defence, especially but not limited to court fees, attorney costs, experts’ costs, travel costs and expenses.

2. Provided that nothing to the contrary has been stated in the order confirmation our place of business shall be the place of fulfilment.

Updated in September 2013