General Terms and Conditions of Sale and Delivery

I. Scope

These General Terms and Conditions of Sale and Delivery (“GTC”) shall apply exclusively to transactions with entrepreneurs, legal entities under public law, and special funds under public law.

II. Conclusion of Contract, Incorporation into Contract

1. These General Terms and Conditions of Sale and Delivery shall apply exclusively. Any differing terms and conditions of the Buyer that have not been expressly recognized by us in written form shall not become part of the contract, even if we do not expressly object to them.

Our GTC shall be deemed accepted upon acceptance of delivery or performance at the latest. They shall also apply to all future business transactions even if they are not expressly agreed upon again.

2. Our offers shall be subject to change and non-binding. If a purchase order from the Buyer qualifies as an offer for acceptance, we shall be entitled to accept such offer in written form within a period of five working days by sending an order confirmation. The contract shall only be concluded by our sending of an order confirmation in written form.

3. We reserve the right to make changes, technical or in terms of design, to descriptions and information in brochures, quotations, and written documents, and in terms of performance data, structural design, or material in the course of the progress of technological developments, however, the Buyer shall not be entitled to derive any rights from this. Any information about our products (technical data, dimensions, etc.) shall be deemed estimates or approximations only, unless expressly guaranteed in writing.

4. We shall reserve all ownership and copyrights of all samples, drawings, cost estimates, etc., also if provided in electronic form. These shall not be made accessible to third parties without our permission and shall be returned immediately upon our request.

III. Prices, Payments

In the absence of any special agreements, prices shall be deemed ex works including loading and excluding packaging and unloading. The respective statutory value added tax (“VAT”) and any local taxes in the country of performance shall be added to such prices.

In addition, the following applies to any deliveries across the borders of the Federal Republic of Germany:

The VAT regulations for the movement of goods within the EU shall apply to all deliveries. The Seller reserves the right (also retroactively) to bill any VAT that is due if the required proof - for example, ID number, certification of commercial use of the subject-matter of the contract, confirmation of intra-community supply in the event of collection, export certificates in the event of exports to third countries - cannot be presented in writing or if there is doubt. We shall be informed immediately in the event of newly assigned ID numbers or modifications or deletions of existing ID numbers.

2. If our suppliers’ prices or other costs related to our products increase during the period between conclusion of the contract and delivery, we shall be entitled to raise the agreed prices accordingly.

3. Unless agreed otherwise, the following milestone payments shall apply to tool contracts:

- one third at conclusion of the contract
- one third upon delivery of the first proof samples
- one third upon approval and release of sample

Unless a different payment term is stated in the order confirmation, the purchase price shall be due for payment immediately upon receipt of the invoice by the Buyer without any reductions or discounts. Payments shall be deemed received only after the amount becomes finally available in the Seller’s account.

4. Any rights of set-off or retention on the part of the Buyer shall be excluded, unless a counterclaim is undisputed or final and conclusive. However, the Buyer shall only be authorized to exercise any right of retention if their counterclaim is based on the same contract.

IV. Delivery and Installation

1. Any agreements regarding binding delivery dates or installation periods (performance periods) must be made in written form. Our timely performance shall be subject to the condition precedent that all commercial and technical issues between the Buyer and us have been clarified and the Buyer has fulfilled all their obligations, for example, has obtained all required official permissions or made down-payments.

2. Our deadline for delivery shall be deemed met if our product has left the factory by the expiry of such deadline, or if we have reported readiness for delivery. Insofar as acceptance is required, the date of acceptance shall be relevant; this shall not apply to any justified refusal of acceptance.

3. If we are unable to perform in time, we shall inform the customer immediately.

4. If delivery is delayed due to force majeure or other unforeseeable extraordinary events for which we are not responsible (for example, difficulties in procuring material, shortage of energy, import difficulties, disruption of operations, strike, shortage of means of transport, and also if these occur at our suppliers), the delivery periods shall be extended appropriately. If, due to the circumstances as mentioned above, delivery becomes impossible or unreasonable, we shall be released from our delivery obligation. In that case, we will inform the Buyer about such non-availability or unreasonableness immediately and immediately reimburse any consideration that we may have received earlier to the Buyer. If the delay in delivery that is due to reasons mentioned above continues for a period of more than two months, both we (to the extent that we have not received the delivery item despite our prior conclusion of a contract of purchase for such) and the Buyer shall be entitled to cancel the contract. In either case, the Buyer shall not be entitled to assert any damage claims based on this.

This shall not affect the Seller’s liability for intent and negligence as set out under No. VIII of these GTC.

Correct and timely receipt of delivery on our part shall remain reserved.

5. If the Seller is responsible for the delay, the Buyer shall be entitled to cancel the contract in accordance with the statutory provisions.

6. We shall be entitled to make partial deliveries insofar as this is reasonable for the Buyer.

Furthermore, deviations of the delivered quantities of up to 10% below or above what is stated in the purchase order shall be allowed and deemed in accordance with the contract. In such case, the agreed purchase price shall be adjusted, increased or decreased, in accordance with the actual delivered quantities.

V. Transfer of Risk, Insurance

1. The risk shall pass to the Buyer as soon as the product has left our site or warehouse. This shall also apply if we take over additional services, including but not limited to shipping costs or delivery. To the extent that acceptance is required, the risk shall pass upon acceptance.

2. If shipping or acceptance is delayed or is omitted due to circumstances for which the Buyer is responsible, the risk shall pass to the Buyer as soon as we have reported the readiness for shipping or acceptance to them.

3. We undertake to insure the product at the Buyer’s express request and at their expense.

VI. Retention of Title

1. The product delivered by us shall remain our property until payment for it has been received in full (goods subject to retention of title).

2. We shall be entitled to insure any goods that are subject to retention of title against theft, breakage, fire, water, and other damage at the customer’s expense insofar as the customer cannot present proof that they have effected an appropriate insurance policy themselves. The customer hereby assigns any and all claims against insurers to us. The Seller accepts this assignment.

3. The delivery item shall remain the property of the Seller until any and all claims that they have against the Buyer under their business relationship are satisfied.

4. The Buyer is allowed to process or modify (“Processing”) the delivery item. (The Processing is done on behalf of the Seller; however, if the value of the delivery item belonging to the Seller is lower than the value of the goods not belonging to the Seller and/or the Processing, the Seller shall acquire co-ownership in the new product in the proportion of the value (gross invoice value) of the processed delivery item to the value of the other processed goods and/or the Processing at the time of Processing). To the extent that the Seller does not acquire any ownership in the new product as mentioned above, Seller and Buyer agree that the Buyer shall transfer part of the ownership in the new product to the Seller, in the proportion of the value (gross invoice value) of the delivery item belonging to the Seller to the rest of the processed goods at the point of time of Processing. Above sentence applies accordingly in the event of an inseparable mixing or connection of the delivery item with goods that do not belong to the Seller. To the extent that the Seller acquires ownership or co-ownership pursuant to this provision (retention of title), the Buyer shall keep it in safe custody for the Seller, applying the diligence of a prudent businessman.

5. In the event of the sale of the delivery item or of the new goods the Buyer, by way of security, hereby assigns their claims against their customer from the resale, including all ancillary rights, to the Seller without the necessity of any specific statements to this effect. The Seller accepts this assignment. This assignment shall include any balance claims. However, this assignment shall only apply in the amount that corresponds to the price that was invoiced by the Seller for the delivery item. The portion of the claim that was assigned to the Seller shall be satisfied with priority.

6. If the Buyer connects the delivery item or the new goods with real property, they hereby also assign their claims to which they are entitled as compensation for the connection, in an amount that corresponds to the price that was invoiced by the Seller for the delivery item, without the necessity of any specific statements to this effect. The Seller accepts this assignment.

7. Until revoked, the Buyer shall be entitled to collect the receivables that were assigned to the Seller in accordance with this No. VI (retention of title]. The Buyer shall immediately forward any payments made in satisfaction of the assigned claims up to the amount of the secured claim. If there are justified interests, including but not limited to default in payment, cessation of payment, opening of insolvency proceedings, protest of a bill of exchange, or justified indications of an over-indebtedness or an imminent inability to pay on the part of the Buyer, the Seller shall be entitled to revoke the Buyer’s entitlement to collect receivables. In addition, upon prior warning and within a reasonable period, the Seller can disclose the assignment by way of security, utilize the assigned receivables, and demand the Buyer’s disclosure of the assignment by way of security to their customers.

8. In the event that a justified interest can be proven, the Buyer shall provide all information and deliver to the Seller all necessary documents that are required to assert their rights against the customers.

9. Under a retention of title, the Buyer shall neither grant liens nor transfer title by way of security. In the event of execution, seizure, or other dispositions or interventions by third parties, the Buyer shall notify the Seller immediately. Any resale of the delivery items or the new goods shall only be allowed in the ordinary course of business of resellers and only under the condition that payment of the consideration for the delivery item is made to the Buyer. The Buyer shall also agree with their customers that they will acquire the title to the goods only after such payment was made.

10. To the extent that the realizable value of all security interests to which the Seller is entitled exceeds the amount of all secured claims by more than 10%, the Seller shall release the corresponding portion of the security interests at the Buyer’s request. It is assumed that the requirements set out in the preceding sentence are fulfilled once the estimated value of the collateral reaches or exceeds 150% of the value of the secured claims. The Buyer shall decide which of the different security interests shall be released.

11. In the event that the Buyer violates any of their obligations, in particular a default in payment, the Seller shall be entitled to demand delivery of the delivery item and/or the new goods, or to withdraw from the contract, if necessary, without any requirement to fixing a final deadline; the Buyer shall be obligated to deliver. A demand for delivery of the delivery item or of the new goods shall not be deemed a notice of withdrawal of the Seller, unless this is expressly stated.

VII. Warranty Claims (Warranty)

1. Our liability shall cover the freedom from defects of our products based on the state of the art. Our liability shall be excluded:

a) if our products are improperly stored, installed, commissioned, or used by the customer or third parties,

b) in case of natural wear and tear,

c) in case of improper maintenance,

d) if unsuitable equipment is used,

to the extent that any damage is due to the root causes listed under a-d;

e) in the event of damage caused by repairs or activities by third parties that have not been expressly approved by us.

2. Warranty claims on the part of the Buyer can only be asserted if the Buyer has met their inspection and notification obligations as provided under Sec. 377 HGB (German Commercial Code).

3. Our statutory liability in the event of defects shall be limited to subsequent performance at first, i.e. correction of defects or replacement, which shall be at our discretion. The request for subsequent fulfilment by the Buyer must be made in writing. The Seller must be extended an appropriate period of time for the subsequent performance. If the delivered goods require remedial action, the subsequent performance shall be deemed to have failed after the second unsuccessful attempt only. If the subsequent fulfilment fails, the Buyer shall have the right to reduce the purchase price or, at their discretion, withdraw from the contract.

This does not affect the statutory provisions regarding those cases where the fixing of a deadline is not necessary. Application of Sec. 445a, 445b, 478 BGB [German Civil Code (Seller’s claim under a right of recourse) shall remain unaffected.

The Buyer’s right to demand damages pursuant to No. VIII of these GTC shall also remain unaffected.

4. To the extent that there is a statutory obligation to bear costs for any expenses necessary for the subsequent performance, the Seller shall not be obligated to bear them insofar as these are increased due to the fact that the subject-matter of the delivery was moved to a place other than the site of the Buyer [; this shall not apply if such movement is in accordance with its intended use]. [Application of Sec. 445a, 478 BGB [German Civil Code (Seller’s claim under a right of recourse) shall remain unaffected.] Notwithstanding any further claims of the Seller, the Buyer shall reimburse any expenses for examination and, if requested, corrections of a defect to the Seller in the event that a complaint was unjustified.

VIII. Limitation of Liability

1. The Seller shall be liable in the event of intent or gross negligence on the part of the Seller or of one of its representatives or vicarious agents, and in the event of injury to life, body, or health caused by negligence, in accordance with the statutory provisions. The Seller’s liability in the event of gross negligence shall, however, be limited to any foreseeable damage that is typical for the contract, insofar as there are no other exceptions as listed in sentences 1 or 3 of this paragraph 1 that apply as well. Otherwise, the Seller shall only be liable under the Product Liability Act, for a culpable violation of material obligations under a contract, or insofar as the Seller has fraudulently concealed the defect or has accepted a guarantee for the quality of the delivered item. However, the claim for damages based on the violation of material obligations under a contract shall be limited to foreseeable damage that is typical for the contract, insofar as there are no other exceptions as listed in sentences 1 or 3 of this paragraph 1 that apply as well.

2. The provisions of above paragraph (1) shall apply to all claims for damages (in particular to damages in addition to performance and damages in lieu of performance), irrespective of their legal basis, particularly based on defects, violation of obligations, or tort. They shall also apply to claims for reimbursement of vain expenses.

Above provisions shall not effect a change in the burden of proof to the disadvantage of the Buyer.

IX. Property Rights

The Buyer indemnifies the Seller from all third-party damage claims that are based on violations of industrial property rights in connection with their purchase order/our delivery.

X. Choice of Law; Jurisdiction

1. These GTC shall be governed by the laws of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods shall be excluded.

2. Place of jurisdiction for transactions with merchants [as defined in the German Commercial Code] shall be Heilbronn. Place of performance for deliveries and payments under the contracts concluded between us and the Buyer shall be Eppingen.

3. Any invalidity of one or more provisions shall not affect the validity of the remaining provisions. The parties to the contract shall be obligated to replace any invalid provisions by valid provisions which are as similar as possible in terms of their economic result. Rudolf Michael GmbH, Date: September 1, 2018

Rudolf Michael GmbH,
Date: September 1, 2018