General Conditions of Sale and Delivery

(06/2008)

These Conditions are an integral part of all our quotations and contracts on the supply of goods or services and also apply to current and future business relationships. Different agreements, particularly such concerning the waiver of the written form requirement or collateral agreements require in each case our express written consent in order to become a part of the Contract. Different General Conditions of Business of the Supplier are herewith rejected as a matter of precaution.

1. Quotation and Contract Conclusion

1.1 Our quotations and cost estimates are subject to confirmation and not binding.

1.2 Contracts and amendments of contracts only become valid if we have accepted orders/contracts in writing or if we have agreed, in writing, on amendments with the Customer. Excluded from this written form requirement is the confirmation of an order that can also be sent in a document that is not signed by us; however, oral confirmations are not valid. As far as the Customer has expressly or implicitly waived such written form requirement, contracts and amendments of contracts also become valid if we have supplied the goods or services ordered by the Customer within the scope of these General Conditions of Sale and Delivery.

1.3 All the data (e.g. analysis data) and documents provided to the Customer contain only industry-typical approximate values unless the respective contract specifications expressly state otherwise. These documents, data and the items themselves are subject to change. This also applies for design and shape changes of the contract item to the extent that such change is not a material change and the change can be regarded as being acceptable for the Customer. In the case of ‘standard goods,’ the tolerances in the Standard Sheet shall apply. Samples and specimen are type samples intended to show the approximate failure of the goods.

1.4 We shall retain our ownership, copyright and/or other industrial property rights in respect of all documents made accessible to the Customer. The aforementioned documents may not be used for another purpose, reproduced or made accessible to a third party without our written consent. The aforementioned documents shall be given back to us without delay upon demand.

1.5 The agreed trade terms are the INCOTERMS as amended.

2. Prices

2.1 Unless otherwise agreed, all prices are net in Euro ex works excluding VAT at the statutory rate.

2.2 Carriage paid prices apply subject to the condition of unhindered road, air and waterway transport.

2.3 We are entitled to charge the same price for the contract item/service that we charge our other customers at the time of the supply of the goods or service if the time period between contract conclusion and supply of the goods/services exceeds 4 months.

2.4 We reserve the right to adjust the prices to a reasonable extent if cost increases due to changes in our calculation basis (e.g. collective wage agreements, material price increases) beyond our control occur after contract conclusion.

3.1 All payments shall be made immediately after invoice receipt without any deduction.

3.2 We accept bills only after prior written agreement and subject to their eligibility for discount. Bill or cheque amounts are not credited until we have the equivalent amount (including extra charges) at our disposal without restriction. We shall be recompensed for incurred costs.

4. Assignment/Offsetting and Withholding

4.1 The Customer shall not be entitled to assign his claims or rights against us to a third party without our written consent.

4.2 The Customer is only entitled to offset against undisputed or res judicata claims or claim a withholding right or performance refusal right because of such claims.

4.3 The above exclusion of the withholding right / performance refusal right does not apply if we have already received, for our partially not contract-compliant supply/services, the payment from the Customer that is equal to the value of the contract-compliant part of our supply/service or if we withhold in the relationship with our supplier a part of the payment that corresponds to the value of the not contract-compliant supply/services.

5. Delivery Time and Delivery Date

5.1 The stated delivery time / delivery date is not binding unless it has been expressly agreed in writing.

5.2 The delivery time stated by us starts with the date of our written order acceptance or confirmation but not before the provision of all documents, permissions and approvals to be obtained by the Customer or before the fulfilment of all other prerequisites and receipt of due payments.

5.3 Force majeure and other extraordinary circumstances, e.g. industrial disputes, governmental measures or traffic disturbance, deterioration or loss of or damage to goods ordered by us, regardless of whether such occurred at our company or at our suppliers, release us from our supply/service performance obligation for the duration of their effects or permanently if they make the performance impossible. Any agreed contract penalty shall not apply under these circumstances.

5.4 If we are not supplied or not timely supplied by our supplier within the scope of a covering transaction for reasons for which we are not to blame and because of this are not able to timely fulfil our supply/service performance obligation, we shall be entitled to rescind the Contract concluded with the Customer to the extent that the Contract covers the goods not supplied.

5.5 A partial delivery/service is permitted.

6. Acceptance/Purchase

6.1 The Customer is obliged to perform the acceptance of the goods/service and/or collect or take delivery of the goods, as applicable, immediately after our demand.

6.2 If the Customer does not timely perform the acceptance of the goods/service and/or collect or take delivery of the goods, as applicable (item 6.1), we shall be entitled to rescind the Contract with this Customer after a fruitless warning giving a reasonable period of grace and demand compensation via, at our choice, either recompense of the incurred loss or – without proof of loss, 10% of the agreed price. The Customer has the onus of proving that we incurred no loss or a much smaller loss.

6.3 Depending on the batch, differences between the actually delivered quantity and the quantity stated in the order acknowledgment of up to 10% are within the tolerance range usual in commercial practice. The order shall be deemed to be properly fulfilled if a delivery is within this quantity tolerance; the price is determined by the actually delivered quantity.

7. Place of Performance and Passing of Risk

7.1 The place of performance for all supply/services is Bremen. Delivery terms shall be ex works unless otherwise agreed.

7.2 Delivery is effected at the Customer’s risk ex works. The risk passes to the Customer with the ready for collection notice, even in the case of partial delivery. If a shipping of the goods to another place is agreed, the risk passes to the Customer with the shipping of the goods. The Customer shall then bear the resulting additional cost for packaging, transport and insurance.

7.3. The risk passes to the Customer on the day of the ready for shipping notice if the shipping is delayed for reasons for which the Customer is to blame. The Customer is obliged to pay the costs incurred through the storage of the contract items and we shall in such cases be entitled to determine in fair judgement the amount of such cost. Item 6.2 remains unaffected.

8. Shipping and Transport

8.1. We shall be entitled to choose the shipping route and means of transport at our discretion unless otherwise agreed.

8.2 The means of conveyance, containers and enclosures furnished by us may only be used for the transport and storage of the goods supplied to you by us. Packaging that is not single use packaging shall be returned with carriage and charges paid to the return address stated by us immediately after emptying. There shall be no crediting for goods remaining in the packaging due to incomplete emptying. Emptying and cleaning costs shall be borne by the Customer.

8.3 The Customer bears all the risks for these items, including accidental loss/destruction, for the duration of the use of the means of conveyance, etc., furnished by us.

8.4 We charge the usual rental fees or charges for the furnishing of the means of conveyance, etc., and such charging includes the day of filling and day of return to us. For pallet containers that have not been returned to us within two months, we charge a rental fee of € 5.50 per day per container after the expiry of this period.

8.5 If the Customer has to furnish the means of conveyance, etc., he must deliver such timely, at his own risk and with carriage paid to the delivery point notified to him. We are not obliged to check for the presence of defect, brand purity and/or type purity of the already existing contents or for their conformity to statutory regulations. The Customer is responsible for the compliance with the permitted total weight.

9. Reservation of Ownership

9.1 We reserve ownership of the contract items (reserved ownership goods) supplied by us until the full payment of all our claims under this Contract and from the business relationship with the Customer, regardless of legal basis, that arise or already existed at the time of contract conclusion or arise later in the business relationship.

9.2 The Customer is entitled to resell, process, mix and incorporate and subsequently resell within the scope of an extended reservation of ownership if this occurs within the scope of a proper business operation. Particularly not permitted is a pledging or security assignment of the reserved ownership goods by the Customer. The Customer may not transfer the ownership of the reserved ownership goods to his buyer until the full payment of all our claims.

9.3 The Customer performs a processing or transformation of the reserved ownership goods on our behalf. If the Customer processes the reserved ownership goods with other goods not owned by us we shall acquire co-ownership of the new item at a level equal to the invoice value of the reserved ownership goods. The new item resulting from the processing shall also be reserved ownership goods for the purpose of these Conditions.

9.4 The Customer herewith assigns to us, in advance and as security, all his claims (including any ancillary claims) arising in connection with the resale against his insurer. If the Customer sells the reserved ownership goods together with other goods not owned by us, either without or after the processing, the claims are assigned to us at a level corresponding to the invoice value of the reserved ownership goods. The aforementioned assignment does not contain a deferment of our payment claims against the Customer.

9.5 The Customer is entitled and obliged to collect the accounts receivable from the resale despite the assignment if we have not revoked this authorisation. He shall immediately pay over to us the collected amounts so as to pay our demands in full.

9.6 The Customer shall immediately notify us in writing of impairments of our rights, particularly attachment or confiscation of the reserved ownership goods and attach to such notice copies of records of attachment, etc.

9.7 If the Customer is in default with payments that in total exceed at least 20% of the claims we have against this Customer, or if he culpably breaches one of the duties arising from the agreed reservation of ownership, the entire remaining debt shall become immediately due. We shall then be entitled to rescind the Contract and demand the surrender of the reserved ownership goods.

9.8 We are obliged to assign back to the Customer our entitled ownership of the reserved ownership goods and the claims assigned to us if the Customer so demands and if and to the extent that the value of such exceeds the total value of the claims we have against the Customer by more than 20%.

10. Defect

10.1 The Customer must notify us of defects within eight calendar days after receipt of the goods and hidden defects within eight calendar days after their detection.

10.2 The Customer must give us the opportunity to effect a subsequent performance within a reasonable period of grace and we may effect such, at our choice, by repair of defect, the delivery of a defect-free item or the manufacture of a new item.

10.3 The Customer is entitled, notwithstanding any compensation claims, to rescind the Contract or reduce the selling price if the subsequent performance is finally fruitless or if it is unreasonable for us or our Customer or if it is only possible at excessive costs.

10.4 Customer’s claims against us for recompense of the expenses necessary for the subsequent performance, particularly transport, toll, labour and material expenses, are excluded to the extent that the expenses are higher because the contract item has been subsequently moved to a place other than the Customer’s branch or place of business unless the movement corresponds to the proper intended use of the contract item.

10.5 The Customer shall only have statutory recourse claims against us if and to the extent that he has not made agreements going beyond the scope of the statutory warranty entitlement with his customer. Item 10.4 shall also apply for the scope of the Customer’s recourse claims against us.

10.6 In cases of defect complaint, the Customer shall be entitled to withhold payment to an extent that is reasonable in proportion to the arising defect of quality.

10.7 The limitation period for defect of quality and defect of title is one year from the passing of risk. This shall not apply if and to the extent that a longer period is required pursuant to Sections 438 (1), item 2, 479 (1), 634a (1), item 2, and 651 of the German Civil Code, if the defect was fraudulently concealed or in one of the liability cases mentioned in item 11.1 below.

10.8 We supply used items, - notwithstanding item 11.1 below – under the exclusion of liability for defect of quality or defect of title.

10.9 Customer’s claims based on defect are excluded in cases of insignificant defects of quality. An insignificant defect of quality especially exists if the value or usability for a usual use is only insignificantly reduced.

11. Compensation and Liability

11.1 We exclude our liability for slightly negligent breach of contractual duty provided that this does not concern a material contractual duty, loss due to death, bodily injury or impairment of health or warranties or entitlements pursuant to the Product Liability Act. The same applies for breach of duty on the part of our vicarious agents.

11.2 Compensation for the breach of a material contractual duty is limited to contract-typical foreseeable loss if there is no intentional act or gross negligence, and there is no liability for health or bodily injury or because of the assumption of a warranty for the existence of a quality.

11.3 A breach of duty on our part or on the part of our legal representative or vicarious agent is one and the same.

12. Place of Jurisdiction/Applicable Law/Partial Ineffectiveness

12.1 The exclusive place of jurisdiction for all disputes arising directly or indirectly between us and our Customer out of the contractual relationship – including out of documents, bills or cheques – shall be Bremen (courts of the city of Bremen). However, we are also entitled to take legal action for our claims against the Customer at the courts having jurisdiction at the Supplier’s place of business, if we so wish.

12.2 This Contract is subject to the laws of the Federal Republic of Germany. The application of the UN Convention on the International Sale of Goods is excluded.

13. Confidentiality

13.1 The parties to the Contract undertake to keep secret, without time limit, all information that they gain access to in connection with this Contract and is marked confidential or is identifiable as business or trade secret because of other circumstances and not to record or otherwise use such information unless necessary for the achievement of the purpose of the Contract