GENERAL CONDITIONS OF PURCHASE

THE GELDBACH GROUP GMBH & CO. KG

(version 09/2017)

1. validity

1. 2 These General Terms and Conditions of Purchase shall apply to all – also future – orders of goods, services and contract work and their processing vis-à-vis companies within the meaning of § 14 para. 1 BGB. We do not recognize any terms and conditions of the Seller that conflict with or deviate from these Terms and Conditions of Purchase, unless otherwise provided for in these Terms and Conditions of Purchase or in the contract with the Seller. If we accept the goods without express objection, this shall in no case imply that we have accepted the Seller’s conditions.

   3. oral agreements made by our employees shall only become binding upon our confirmation in text form.
   4. the preparation of offers is free of charge and non-binding for us.
   5. the Incoterms in their currently valid version shall be decisive for the interpretation of commercial clauses.
   6. prices
   7. the agreed price is a fixed price
   8. in case of pricing “free domicile”, “free place of destination” and other “free of charge” deliveries, the price includes freight and packaging costs. In the case of carriage forward delivery, we shall determine the type of shipment.
   9. the Incoterms in their latest version shall apply.

   III. payment

   1. in the absence of any other agreement or more favourable conditions of the seller, payments shall be made within 30 days less 3% discount or within 60 days net.
   2. payment and discount periods shall run from receipt of invoice, but not before receipt of the goods or, in the case of services, not before their acceptance and, if documentation, test certificates (e.g. factory certificates) or similar documents are part of the scope of services, not before their handover to us in accordance with the contract.
   3. payments shall be made by cheque or bank transfer. Payment shall be deemed to be on time if the cheque has been sent by post on the due date or the bank transfer has been ordered from the bank on the due date.
   4. maturity interest cannot be demanded. The default interest rate is 5 percentage points above the base interest rate. In any case, we are entitled to prove that the damage caused by default is less than that claimed by the seller.
   5. we shall be entitled to set-off and retention rights to the extent permitted by law.
   6. delivery periods / delay in delivery
   7. agreed delivery dates and periods are binding. Impending delays in delivery must be notified to us immediately in text form. At the same time, suitable countermeasures must be proposed to us to avert the consequences.
   8. the receipt of the goods by us shall be decisive for compliance with the delivery date or delivery period, unless otherwise agreed in writing.
   9. if the seller is in default of delivery, we are entitled to the legal claims. In particular, we shall be entitled to demand damages in lieu of performance after the fruitless expiry of a reasonable grace period set by us. Our claim to delivery shall only be excluded once the Seller has paid the damages.
   10. the Seller may only invoke the absence of necessary documents to be supplied by us if he has not received the documents even after a written reminder.
   11. reservation of title

   12) With regard to the Seller’s rights of retention of title, the Seller’s terms and conditions shall apply with the proviso that the title to the goods shall pass to us upon payment and that accordingly the extended form of the so-called current account retention shall not apply.

   13. on the basis of the reservation of title, the seller can only demand the return of the goods if he has previously withdrawn from the contract.
   14. execution of deliveries and transfer of risk
   15. the seller shall bear the risk of accidental loss and accidental deterioration, even in the case of “franco” and “free domicile” deliveries, until the goods are handed over at the place of destination. In addition, the Incoterms in their latest version shall apply.
   16. partial deliveries require our consent.
   17. excess or short deliveries shall only be permitted within the customary commercial framework.
   18. packaging costs shall be borne by the seller, unless otherwise agreed in writing. If, in individual cases, we bear the costs of packaging, this shall be charged to us at the lowest possible rate. The obligations to take back the goods are based on the packaging ordinance of 21.08.1998 in its currently valid version. The costs for the return transport and/or the disposal of the packaging shall be borne by the Seller.

    

   VII. Declarations of originating status

   1. at our request, the seller shall provide us with a supplier’s declaration on the preferential origin of the goods

   2 In the event that the Seller makes declarations on the preferential or non-preferential origin of the goods sold, the following shall apply:

   3. a) The Seller undertakes to enable the verification of proofs of origin by the customs authorities and to provide both the necessary information and any necessary confirmations.
   4. b) The seller is obliged to compensate for any damage caused by the fact that the declared origin is not recognized by the competent authority due to faulty certification or lack of verification possibilities, unless he is not responsible for these consequences.

   VIII. Liability for defects and limitation period

   1. the seller must provide us with the goods free of material defects and defects of title In particular, he must guarantee that his deliveries and services comply with the recognised rules of technology and the contractually agreed properties and standards.
   2. the goods shall be inspected by us upon receipt to the extent reasonable and technically possible for us with regard to quality and completeness. In the absence of concrete indications of a defect, only examinations of the external quality visible to the naked eye shall be deemed to be reasonable within the scope of the incoming goods inspection, but not examinations of the internal quality of the goods. Notifications of defects shall be deemed to be in good time if they are received by the Seller by letter, fax, e-mail or telephone within ten days. The period for the notification of defects shall commence at the time at which we – or in the case of drop shipments our customers – have discovered the defect or should have discovered it.
   3. if the goods have a material defect, we shall be entitled to the statutory rights at our discretion. A rectification of the defect by the seller shall be deemed to have failed after the first unsuccessful attempt. We shall also be entitled to withdraw from the contract if the Seller’s breach of duty in question is only insignificant.

   We may also demand compensation from the Seller for those expenses in connection with a defect which we have to bear in relation to our customer if the defect was already present when the risk passed to us.

   5. the statutory limitation periods shall apply to our claims for defects.

   6) The Seller hereby assigns to us – on account of performance – all claims to which he is entitled against his suppliers on account of and in connection with the delivery of defective goods or goods lacking guaranteed characteristics. He shall hand over to us all documents required for the assertion of such claims.

   7. place of performance, jurisdiction and applicable law
   8. place of performance for the delivery is, unless otherwise agreed, our registered office.
   9. place of jurisdiction is our company headquarters. We can also sue the seller at his place of jurisdiction.

   10 All legal relations between us and the Seller shall be governed by German law in addition to these Terms and Conditions, including the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980.

   General Terms and Conditions of Sale

   the Geldbach Group GmbH & Co. KG

   Version 09/2017

   1. validity/contract conclusion

   2 These General Terms and Conditions of Sale shall apply to all – also future – contracts with entrepreneurs, legal entities under public law and special funds under public law for deliveries and other services. Purchasing conditions of the buyer are not recognized even if we do not expressly object to them again after receipt.

   3 Our offers are subject to change and non-binding. Oral agreements, promises, assurances, guarantees and statements about the purpose of use or application of our employees in connection with the conclusion of the contract are non-binding and only become binding upon our confirmation in text form.

   4. the co-delivery (provision) of test certificates according to DIN EN 10204 requires an agreement in text form. We are entitled to provide copies of such certificates and to cover the purchaser and the exhibitor in such copies.

   5 In case of doubt, the Incoterms in their latest version shall be decisive for the interpretation of trade clauses.

   6. prices

   Unless otherwise agreed, the prices are ex works or ex warehouse plus freight, value added tax and import duties. The goods are calculated “gross for net”.

   III Payment and offsetting

   1. payment must be made – without deduction of discount – in such a way that we can dispose of the amount on the due date. This shall also apply if the test certificates according to DIN EN 10204 agreed for the delivery are missing or arrive late. Costs of payment transactions shall be borne by the buyer. The Buyer shall only be entitled to a right of retention and a right of set-off to the extent that his counterclaims are undisputed or have been established as final and absolute, they are based on the same contractual relationship with the Seller and/or they would entitle the Buyer to refuse performance in accordance with § 320 BGB.

   2 Unless otherwise agreed, our invoices are due 14 days after the date of invoice. If the payment deadline is exceeded, at the latest from the date of default, we shall charge interest on arrears at the statutory rate (§ 288 BGB), unless higher interest rates have been agreed. In addition, we charge a lump sum for default in the amount of € 40.00. We reserve the right to claim further damages caused by default.

   3. if after conclusion of the contract it becomes apparent that our claim for payment is endangered by the buyer’s lack of solvency, or if the buyer defaults on a substantial amount of payment or if other circumstances arise which indicate a substantial deterioration in the buyer’s solvency, we may refuse to make agreed advance payments. In such cases, we can also make all claims not yet due from the current business relationship with the buyer due for payment.
   4. an agreed discount always relates only to the invoice value excluding freight and presupposes the complete settlement of all due liabilities of the buyer at the time of the discount. Unless otherwise agreed, discount periods shall commence from the date of invoice.
   5. execution of deliveries, delivery periods and dates

   6) Our delivery obligation is subject to correct and timely supply to ourselves and in the case of import transactions additionally subject to the timely receipt of surveillance documents and import permits.

   7. information on delivery times are approximate. Delivery periods begin with the date of our order confirmation and are only valid under the condition of timely clarification of all details of the order and timely fulfilment of all obligations of the buyer, such as e.g. provision of all official certificates, provision of letters of credit and guarantees, payment of down payments or drawings approved by the buyer.
   8. the time of dispatch ex works or warehouse shall be decisive for compliance with delivery periods and dates. They shall be deemed to have been complied with upon notification of readiness for dispatch if the goods cannot be dispatched on time through no fault of ours.
   9. the buyer must ensure smooth acceptance of the goods and inform us in good time of any difficult delivery conditions. The buyer must unload immediately and properly. If we or third parties are involved in this, this is done without legal obligation and at the risk of the buyer.

    

   10. events of force majeure entitle us to postpone deliveries for the duration of the hindrance and a reasonable start-up time. This also applies if such events occur during an existing delay. Force majeure shall be equivalent to currency, trade policy and other sovereign measures, strikes, lock-outs, operational disruptions for which we are not responsible (e.g. fire, machine and roller breakage, shortage of raw materials and energy), obstruction of traffic routes, delays in import/customs clearance, and all other circumstances which, through no fault of ours, make deliveries and services significantly more difficult or impossible. It is irrelevant whether the circumstances occur at our premises, at the supplier’s works or at those of another supplier. If, as a result of the aforementioned events, the performance of the contract becomes unreasonable for one of the contracting parties, it may withdraw from the contract by means of an immediate declaration in text form.
   11. retention of title

   12) The delivered goods remain the property of the seller until full payment of the purchase price. The buyer is obliged to take the measures necessary to maintain the reservation of title – or a comparable security interest in the country of his establishment or in a different country of destination – and to provide us with evidence of such measures on request.

   13. the following supplementary provisions shall apply to the extent permissible under the law of the country in which the goods are located:
   14. the delivered goods shall remain our property (reserved goods) until all claims, in particular the respective balance claims, to which we are entitled within the scope of the business relationship have been settled (reservation of balance). This shall also apply to future and conditional claims and also if payments are made for specially designated claims. This reservation of balance shall finally expire upon settlement of all claims still open at the time of payment and covered by this reservation of balance. However, the balance reservation does not apply to prepayment or cash transactions which are processed step by step.
   15. processing and treatment of the reserved goods shall be carried out for us as manufacturer within the meaning of § 950 BGB (German Civil Code) without any obligation on our part. The treated and processed goods shall be deemed to be reserved goods within the meaning of No. 2 a. If the buyer processes, combines or mixes the reserved goods with other goods, we shall be entitled to co-ownership of the new item in proportion to the invoice value of the reserved goods to the invoice value of the other goods used. If our ownership expires due to combination or mixing, the buyer shall already now transfer to us the ownership rights to which he is entitled to the new stock or item to the extent of the invoice value of the reserved goods and shall keep them in safe custody for us free of charge. Our co-ownership rights shall be deemed to be reserved goods within the meaning of No. 2 a.
   16. the buyer may only sell the reserved goods in the normal course of business at his normal terms and conditions of business and as long as he is not in default, provided that the claims from the resale in accordance with d) to e) are transferred to us. He is not entitled to dispose of the reserved goods in any other way.
   17. the claims from the resale of the reserved goods are hereby assigned to us together with all securities which the buyer acquires for the claim. They serve as security to the same extent as the reserved goods. If the reserved goods are sold by the buyer together with other goods not sold by us, the claim from the resale is assigned to us in the ratio of the invoice value of the reserved goods to the invoice value of the other goods sold. In the case of the sale of goods in which we have co-ownership shares, a part corresponding to our co-ownership share is assigned to us.
   18. the buyer is entitled to collect claims from the resale. This collection authorisation shall expire in the event of our revocation, but at the latest in the event of default of payment, dishonour of a bill of exchange or application for the opening of insolvency proceedings. We shall only make use of our right of revocation if, after conclusion of the contract, it becomes apparent that our claim for payment from this or other contracts with the purchaser is jeopardised by the purchaser’s lack of solvency. At our request, the buyer is obliged to inform his customers immediately of the assignment to us and to provide us with the documents necessary for collection.
   19. the buyer must inform us immediately of any seizure or other impairments by third parties. The buyer shall bear all costs which must be incurred in order to cancel the seizure, to sort out or to return the reserved goods, unless they are reimbursed by third parties.
   20. if the invoice value of the existing securities exceeds the secured claims including ancillary claims (interest; costs, etc.) by more than 50 per cent in total, we are obliged to release securities of our choice at the request of the buyer.

   Vl. Weights

   1. the weighing carried out by us or our supplier is decisive for the weights. Proof of weight is provided by presentation of the weighing slip. We can also determine the weights without weighing according to length and/or theoretically, whereby we can determine the dimensions according to statistical methods. We shall be entitled to increase the theoretical weight by 2 ½ % (commercial weight) to compensate for rolling and thickness tolerances and to base our invoicing on a commercial weight of 8 kp/dm³.
   2. the number of pieces, bundles, etc. stated in the dispatch note are not binding for goods invoiced by weight. If individual weighing is not usually carried out, the total weight of the consignment shall apply in each case. Differences compared to the calculated individual weights shall be distributed proportionately among them.

   VII. acceptance

   1. if acceptance has been agreed, the goods can only be accepted in our warehouse, immediately after notification of readiness for acceptance The personal acceptance costs shall be borne by the buyer, the material acceptance costs shall be charged to him according to our price list or the price list of the supplier plant.
   2. if the goods are not, not in time or not completely accepted without our fault, we are entitled to dispatch them without acceptance or to store them at the expense and risk of the buyer and to invoice them to him.
   3. in the case of acceptances that exceed the agreed standards, the buyer shall bear all risks and costs associated with such acceptances.

   VIII. Call orders, continuous deliveries

   1. in the case of contracts with continuous delivery, call-offs and classification of types are to be made to us for approximately equal monthly quantities; otherwise we are entitled to make the provisions ourselves at our reasonable discretion.
   2. if the individual calls exceed the total contractual quantity, we are entitled but not obliged to deliver the additional quantity. We may invoice the excess quantity at the prices valid at the time of the call or delivery.
   3. dispatch, transfer of risk, packaging, partial delivery
   4. we determine the dispatch route and means as well as the forwarding agent and carrier.
   5. goods notified as ready for dispatch in accordance with the contract must be called off immediately, otherwise we are entitled, after a reminder, to dispatch them at the expense and risk of the buyer at our discretion or to store them at our discretion and to invoice them immediately.
   6. if, through no fault of ours, transport on the intended route or to the intended place in the intended time becomes impossible or considerably more difficult, we shall be entitled to deliver on another route or to another place; the additional costs incurred shall be borne by the purchaser. The buyer shall be given the opportunity to comment beforehand.
   7. in the case of call orders, the risk shall pass to the buyer when the goods are made available for collection. In all other cases, the risk, including that of seizure of the goods, shall pass to the Buyer when the goods are handed over to a forwarding agent or carrier, but at the latest when the goods leave the warehouse or the supplying plant, in all transactions, including deliveries carriage paid and free domicile. We will only provide insurance on the instructions and at the expense of the buyer. Unloading and its costs shall be borne by the buyer.
   8. the goods are delivered unpacked and not protected against rust. If agreed, we will deliver packed. We will provide packaging, protective and/or transport aids according to our experience at the expense of the buyer. They shall be taken back at our warehouse. We shall not bear the Buyer’s costs for the return transport or for the Buyer’s own disposal of the packaging.

   9) We are entitled to make partial deliveries to a reasonable extent. We are also entitled to exceed or fall short of the agreed delivery quantities by a reasonable amount. The indication of an “approx.” quantity entitles us to exceed/undercut the agreed quantities by up to 10 %.

   10. technical advice, liability for material defects
   11. we provide technical advice to the best of our knowledge and ability. However, it is not binding and does not release the purchaser from the need to carry out his own checks and tests. The buyer is responsible for the observance of legal and official regulations when using our goods.
   12. the internal and external properties of the goods, in particular their quality, type and dimensions, are determined in accordance with the agreed standards, or, in the absence of an agreement to the contrary, in accordance with the DIN and EN standards applicable at the time of conclusion of the contract, or, in the absence of such standards, in accordance with custom and commercial practice. References to standards and similar sets of rules, to test certificates according to DIN EN 10204 and similar certificates as well as information on grades, types, dimensions, weights and usability of the goods do not constitute assurances or guarantees, nor do declarations of conformity and corresponding marks such as CE and GS.

   The statutory provisions shall apply to the inspection of the goods and notification of defects, with the proviso that the obligation to inspect the goods after delivery shall also extend to any test certificates in accordance with or pursuant to DIN EN 10204 and that we shall be notified of defects in the goods and test certificates in text form.

   14 In the event of an intended installation of the goods, the Buyer shall be obliged, within the framework of § 377 HGB (German Commercial Code), to check the properties of the goods relevant for use before installation and to notify us immediately of any defects in the goods. If the buyer fails to check the properties of the goods relevant for the use of the goods before installation, the buyer is guilty of gross negligence. In this case, defect rights with regard to these properties shall only be considered if the defect in question was fraudulently concealed or a guarantee for the quality of the item was assumed.

   15. in the event of justified, timely notification of defects, we may, at our discretion, either remedy the defect or deliver goods free of defects (subsequent performance). In the event of failure or refusal of subsequent performance, the buyer shall be entitled to the statutory rights. If the defect is not substantial or if the goods have already been sold, processed or redesigned, the buyer is only entitled to the right to reduce the purchase price.
   16. we shall only assume expenses in connection with the subsequent performance if they are reasonable in the individual case, in particular in relation to the purchase price of the goods, but in no case more than 150 % of the value of the goods. Excluded are costs incurred by the buyer for the self-correction of a defect without the legal requirements being met. We shall not assume any expenses arising from the fact that the goods sold have been taken to a place other than the agreed place of performance.
   17. after the buyer has carried out an agreed acceptance of the goods by the buyer, the notification of material defects which could be detected during the agreed type of acceptance is excluded. If a defect has remained unknown to the buyer as a result of negligence, he may only assert rights in respect of this defect if we have fraudulently concealed the defect or have assumed a guarantee for the quality of the item.
   18. in the case of goods sold as declassified material, the buyer shall not be entitled to any rights in respect of the material defect with regard to the stated reasons for declassification and such defects which he would normally have to expect. In the case of the sale of IIa goods, our liability for material defects is excluded in accordance with Section XI No. 2 of these Terms and Conditions. Unless otherwise agreed and provided that the agreed standards are complied with, rust does not constitute a defect.

   19) Further claims of the buyer shall be governed by section XI of these terms and conditions. Rights of recourse of the buyer according to §§ 478, 479 BGB remain unaffected.

   20. damages and limitation of time
   21. We shall only be liable for breach of contractual and non-contractual obligations, in particular for impossibility of performance, delay, culpa in contrahendo and tort – also for our executives and other vicarious agents – in cases of intent and gross negligence, in cases of gross negligence limited to the typical contractual damage foreseeable at the time of conclusion of the contract. Otherwise, our liability is excluded, also for damages caused by defects and consequential damages.

   22) These restrictions shall not apply in the event of culpable breach of material contractual obligations, the breach of which jeopardises the achievement of the purpose of the contract, or the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the contracting party may regularly rely. Furthermore, these limitations shall not apply in the case of culpably caused damage to life, body and health and also not if and insofar as we have assumed the guarantee for the quality of the sold item, as well as in cases of mandatory liability under the Product Liability Act. The rules on the burden of proof remain unaffected by this.

   Unless otherwise agreed, contractual claims which the buyer has against us as a result of and in connection with the delivery of the goods, including claims for damages due to material defects, shall expire by limitation one year after delivery of the goods. In the event of subsequent performance, the limitation period shall not start anew, but shall be suspended until the expiry of three months after performance of the subsequent performance. This shall not affect our liability and the limitation period for claims arising from intentional and grossly negligent breaches of duty, culpably caused damage to life, body and health and the limitation period for recourse claims pursuant to §§ 478, 479 BGB. The statutory periods of limitation apply to these.

   XII Place of performance, place of jurisdiction, applicable law

   1) The place of performance for our deliveries is the supplying factory in the case of delivery ex works, for other deliveries as well as for payments by the purchaser the location of our head office. The place of jurisdiction is, at our discretion, the location of our main branch or the location of the buyer.

   All legal relations between us and the buyer shall be governed by the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11.4.1980.