AGBs

General Terms and Conditions

1. General

The following General Terms and Conditions shall only apply towards entrepreneurs (Section 14 German Civil Code). They form an integral part of all current and future contracts and agreements concluded with us. In particular, they apply to sales and delivery contracts and to any advisory services rendered by us in relation thereto. The Purchaser acknowledges the applicability of these Terms and Conditions – also for follow-up business, if any – by not objecting upon receipt, at the latest upon receipt of our goods or other services.

Oral side agreements, exclusions from, amendments of or additions to these Terms and Conditions are only valid upon express written confirmation by us. This shall also apply to any waiver of this written form requirement.

The applicability of other general terms and conditions of the Purchaser is hereby objected to, even in the event that they are submitted to us in a confirmation letter or in any other way. Any unconditional delivery of goods and services as well as the acceptance of payment on our part does not constitute an acknowledgement of any provisions deviating from these General Terms and Conditions.

Unless otherwise specified in these General Terms and Conditions, the terms and definitions of INCOTERMS 2000 shall apply.

2. Offers, Contracts

Our offers are subject to confirmation; a contract is only concluded by our written order confirmation or if orders have been executed by us.

Amendments of, additions to and/or the cancellation of the contract require written form. This also applies to a waiver of the written form requirement. Statements and notifications by the Purchaser subsequent to the conclusion of the contract are only valid if made in writing.

We reserve title to and copyright for pictures, drawings, calculations and any other documents. These shall not be made available to any third party. Before passing them on to any third party, the Purchaser must obtain our express written consent.

3. Prices, Terms of Payment

All prices are “ex works”, excluding packaging, plus applicable statutory VAT. Payment is due upon invoicing and shall be made to us free place of payment, unless otherwise agreed. Deductions of discounts must be agreed separately in writing. Our Customer may only offset payments against such claims which are uncontested or have become non-appealable.

4. Place of Performance, Transportation Insurance

The place of performance is our place of business. Unless otherwise provided for in the order confirmation, delivery is agreed to be “ex works”.

The risk passes to the Purchaser when the products or appliances are shipped, even when freight is paid. Transport packaging and all other packaging subject to the German Packaging Regulations [Verpackungsordnung] are not taken back. The Purchaser is obliged to dispose of the packaging at its own costs.

5. Delivery, Duty to Cooperate

The scope of our delivery obligation is exclusively defined in this contract. Our goods are subject to changes in construction, form and colour resulting from technical improvements or legal requirements, provided such changes are not substantial or otherwise unacceptable for the Purchaser.

If the Purchaser can be reasonably expected to accept partial deliveries, these may be made and invoiced.

Terms of delivery are generally stated subject to the cooperation of the Purchaser in accordance with the contract. The compliance with our delivery obligation requires the timely and due fulfilment of the Purchaser’s obligations. If we do not receive delivery despite having placed equal orders with reliable suppliers, we will be released from our performance obligation and may withdraw from the contract.

If after conclusion of the contract it turns out that the Purchaser does not sufficiently guarantee its solvency, and our claim for payment is endangered, we may withhold delivery until the Purchaser has effected payment or furnished a security. If payment or security has not been received within 12 working days of request, we are entitled to withdraw from the contract.

If the Purchaser defaults in calling, taking delivery of, or collecting goods, or if the Purchaser is responsible for a default in shipment or delivery we shall be entitled, without prejudice to any further claims, charge a flat charge in the amount of local storage costs, irrespective of whether we store the goods in our warehouse or with a third party. The Purchaser may prove that no damage has occurred or that the amount of damage was lower.

6. Defaults in Delivery

If we are unable to comply with the agreed delivery date for circumstances which are not within our or our suppliers’ control, the delivery date shall be reasonably extended. We will promptly inform the Purchaser of such circumstances. If the impeding circumstances still exist after expiry of the agreed delivery date, either party may withdraw from the contract. Further claims for default in delivery, for which we are not responsible, shall be excluded.

7. Reservation of Title

We retain title to the delivered goods until all our receivables against the Purchaser from the business relationship have been settled, including future receivables from contracts concluded at the same time or later. This shall also apply if receivables are billed periodically and the balance is brought forward and accepted.

The Purchaser is entitled to sell or process the goods in the ordinary course of business. Should processing be required, the Purchaser shall do it for us; we do, however, not incur any ensuing obligation. In the case of processing, connecting or mingling of retained goods with other items, we shall generally acquire co-ownership in the newly created product, i.e. in the event of processing at a ratio of the invoiced value (= invoiced gross value including incidental charges and taxes) of the retained goods at the value of the newly created product, in the event of connecting or mingling at a ratio of the retained goods in proportion to the invoiced value of the other items.

The Purchaser hereby assigns to us all claims arising against its customers or third parties from the resale. The Purchaser remains authorised to collect debts also after the assignment. Our authorisation to collect debts ourselves, however, shall remain unaffected thereby; we shall, however, not make use of such right as long as the purchaser duly complies with its payment and other obligations. Upon our request, the Purchaser shall inform us about assigned receivables and the respective debtors, give us all necessary information for collection, hand over the relating documents and inform the debtor of the assignment.

8. Product Information

Our information on our products and appliances and on our facilities and processes is based on extensive research and our considerable experience in the field of application technology. We provide this information, which to the best of our knowledge is correct, both orally and in writing without assuming any liability other than the liability agreed upon in the respective individual contract, but we reserve the right to make technical modifications in the course of our product development. However, this shall not release the user from its obligation to verify the suitability of our products and processes for its own use. The Purchaser’s specification of intended use shall only be binding if at the time of the conclusion of the contract we have confirmed in writing that the delivered goods or equipment are suitable for the use intended by the Purchaser. This shall also apply to the protection of third party industrial property rights and to applications and processes.

9. Defects

The Purchaser is obliged to immediately examine the goods with respect to defects and to make an immediate complaint with respect to defects of the goods, if any, in accordance with the statutory provisions of Sec. 377 of the German Commercial Code (HGB).

The Purchaser cannot derive any further rights from defects which do not impair or only slightly impair the value and the suitability of the goods for the intended use.

10. Further Liability for Damages

Irrespective of the legal nature of the asserted claim we exclude any liability for damages which is not provided in paragraph 9. This shall in particular apply to claims for damages based on culpa in contrahendo, other breach of duty, or claims in tort for compensation of property damages according to Sec. 823 German Civil Code.

This shall not apply if liability is mandatory, e.g. according to the Product Liability Act, in cases of intent, gross negligence, due to breach of material contractual obligations. However, liability for damages due to breach of material contractual obligations is limited to foreseeable damage typical for the contract in question, provided that the damage was not caused by intentional or grossly negligent behaviour, or that a liability for injury of life, body or health exists. The above provisions do not entail a change in the burden of proof to the prejudice of the Purchaser.

If liability for damages against us is excluded or limited, this shall also apply with respect to the personal liability for damages of our employees, representatives and vicarious agents.

If the Purchaser is entitled to damages according to this paragraph 10, such claims become statute-barred after expiry of the limitation period for claims resulting from defects with respect to newly created products and equipment according to paragraph 9. Claims for damages according to the Product Liability Act are subject to the statutory provisions on limitation periods.

11. Return of Goods

Without our prior written approval, supplied goods which are free from defects cannot be taken back or replaced. Goods returned by customer with our approval are credited with a deduction from the sales price. As a general rule, we will not take back or replace any goods in opened packages and goods which were delivered more than 6 months before. All returned goods are returned at the Purchaser’s expense and risk.

12. Balancing of Accounts

Purchaser shall verify the accuracy and completeness of account balancing statements, in particular statements of balance, and other statements and notifications. Objections to account balancing statements must be posted within one month from receipt; other objections must be made immediately. Failure to make a timely objection constitutes approval. In cases of justified objections customers’ statutory claims remain unaffected after expiry of the period.

13. Place of Jurisdiction

If the Purchaser is a businessman, the place of jurisdiction shall be the seat of our company; if we file a suit, we may also do so at Purchaser’s place of general jurisdiction.

14. Applicable Law

All legal relationships between Purchaser and us 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).

15. Severability

Should individual provisions of these Terms and Conditions be invalid, in whole or in part, this shall not affect the validity of the remaining provisions.

Note

As far as necessary for the proper conduct of the contractual relations, our customers’ and buyers’ data are stored and processed in our IT system.

01 January 2008/ CrioVital, Adriana Pastorello Flöck, Gründau, Germany