GTC & Conditions of Purchase

General Terms and Conditions of Delivery and Service of the ZAHORANSKY Group

The following terms and conditions apply with regard to all current and future offers made by us and contracts concluded with us. Any general conditions of business of the customer shall become an integral part of the contract only if and to the extent that we have expressly consented to the application thereof.

1. Conclusion of the Contract
1.1 Unless otherwise indicated our offers are subject to confirmation and are not binding; no contract shall come about until we have confirmed the order in writing, or by delivery. Solely our confirmation of the order shall be authoritative for the terms of the contract, in particular the scope of the goods/services. Any amendments and additions require our confirmation in writing.
1.2 We reserve the right to make changes to the pictures, descriptions, drawings, weights and dimensions and other details stated in our brochures, price lists, catalogues and our offer provided that they do not significantly alter or improve the quality of the goods/services to be delivered and the changes or deviations are reasonable for the Customer.

2. Prices and Payment Terms
2.1 Our prices for services apply ex works excluding transport insurance, packaging, dispatch and statutory value added tax; in the case of export deliveries excluding customs duties and charges and other official duties. Any support or repair services shall be charged in accordance with the price list applicable at the time the service was rendered.
2.2 Payment shall be due without any deductions upon delivery or upon acceptance of performance ("Abnahme") respectively. The customer shall be in default ("in Verzug") 14 calendar days following delivery and the issue of the invoice without there being any need for a payment reminder. Payment shall only be deemed to have been effected on the date of receipt thereof by us. Cheques and bills of exchange shall be deemed to be payment only once they have been honoured. Any and all discounts, charges for bills of exchange, taxes on bills of exchange and similar dues shall be borne by the customer.
2.3 If we must consider our claims as being at risk because of the customer's financial situation we shall be entitled to rescind the contract. If the customer is in default of payment, we can immediately call in the total debt due to us. In the aforementioned cases we shall furthermore be entitled to make further handling of all of the customer's orders dependent on a payment in advance or the furnishment of security.
2.4 The Customer shall not be entitled to set off claims or to withhold payments on the basis of any counterclaims that it may have unless such counterclaims are undisputed or have become legally binding (“rechtskräftig”).
2.5 If delivery is made more than 6 months after the contract was concluded for reasons, for which we are not responsible, we can adjust the price as far as the list price applicable on the date of delivery less any agreed percentage or fixed discount.

3. Delivery Dates
3.1 Any delivery dates shall be as agreed in the individual case. A delivery deadline shall be deemed to have been met if the goods/services to be delivered have been handed over for transportation or they are ready for dispatch and notice thereof has been given.
3.2 Where we are unable to meet the agreed delivery date due to circumstances for which we are not responsible (operational breakdown, strike, lock-out, power supply problems, our own supplies having been delayed or omitted etc.), we shall inform the customer of this immediately. In such a case, the customer shall not be entitled to claim rescission. However, if it seems unlikely that we will be able to effect performance within a reasonable time, and in any case not within four months at the latest, we and the customer may rescind the contract. The same shall apply mutatis mutandis where the background reasons continue to exist after four months have expired following our notification. If the background reasons are apparent to us when the contract is concluded, we shall not be entitled to claim rescission.
3.3 Where the customer defaults on acceptance, we shall charge for storage at 0.5% of the invoice amount per month, however a maximum of 5% of the invoice amount. After a reasonable period has expired, we may rescind the contract and demand a lump sum payment of damages in lieu of performance amounting to 20% of the order value. Both sides shall retain the right to show that they have incurred a greater or lesser degree of loss.

4. Delivery
4.1 All deliveries shall be EXW ex works or ex distribution warehouse (Incoterms 2010). Where the customer defaults on acceptance, responsibility for the risk shall pass on notification that the goods are ready for dispatch. This applies irrespective of whether or not dispatch takes place from the place of performance and of who bears the transportation costs.
4.2 Part deliveries shall be permitted if the Customer can use the part delivery for the contractually stipulated purpose, delivery of the remainder of the goods ordered has been ensured and the Customer does not thereby incur considerable additional work and expense.

5. Reservation of Title
5.1 We shall retain title to goods supplied by us until settlement in full of all outstanding claims arising under the business relationship with the customer.
5.2 The customer shall be under a duty to store and label the goods subject to the reservation of title separately. At its own expense, the customer shall insure the goods subject to the reservation of title against fire, damage caused by water, burglary and theft. On request, the insurance policy must be submitted to us for inspection. The customer assigns to us in advance all rights to claim under the insurance policy. We accept said assignment.
5.3 The customer must inform us immediately in the event that the property subject to the reservation of title is seized by a third party. The customer shall bear the cost of reversing such seizure and reacquiring the goods supplied by us.
5.4 The customer shall be entitled to sell the goods subject to the reservation of title in the normal course of business provided he is not in default. Liens or assignments of title as security are not permitted. By way of security, the customer hereby assigns to us, in full, all claims, arising from the resale or based on other legal grounds (insurance, tort), which relate to the goods subject to the reservation of title. We revocably authorize the Customer to collect all accounts receivable assigned to us in his own name but for our account. At our request, the customer shall disclose the assignment and provide us with the information and documentation necessary to collect the accounts receivable.
5.5 If the goods subject to the reservation of title are combined with other items, the reservation of title shall continue to apply with respect to the newly created item. We shall thereby acquire a co-ownership share in the ratio of the value (invoice value) of the goods subject to the reservation of title to the value of the other combined items. If one of the combined items is regarded as the main item, the customer shall transfer to us a co-ownership share in the ratio of the value of the goods supplied by us (invoice value) to the value of the other combined items. As regards our co-ownership share, the customer shall keep the newly created item in safe custody, free of charge. If the goods subject to the reservation of title are resold as part of the newly created item, the assignment of future claims contained in Clause 5.4 shall only apply to the extent of the invoice value of the goods subject to the reservation of title.
5.6 In the event that the law applicable in the country, in which the subject matter of the delivery is located, does not permit the agreement of a reservation of title, or does so only in a limited form, we may reserve other rights over the delivered goods. The customer shall be obliged to assist with all measures (e.g. registration) necessary for effecting the reservation of title or rights in substitution of a reservation of title, and to assist in the safeguarding of such rights.

6. Warranty Claims
6.1 If any of our goods or services prove to be defective, we shall initially be under a duty to remedy the defects by, at our option, either rectifying the defect or by making a replacement delivery. In the case of a replacement delivery the customer must return the defective goods to us in accordance with the statutory provisions. We shall bear the costs of such supplementary performance ("Nacherfüllung"), in particular the transport costs, labour costs and cost of materials. This shall not apply if the cost is increased because the subject matter of delivery is located somewhere other than the intended place of use.
6.2 We shall be entitled to make the subsequent performance owed dependent on the customer paying the due purchase price. The customer shall, however, be entitled to withhold such part of the purchase price as is reasonable in proportion to the defect.
6.3 Save in the case of malice ("Arglist") and save as provided in Clause 7.3, the limitation period for warranty claims shall be 12 months calculated as of delivery or, if acceptance is required, as of acceptance.
6.4 If the defect is due to a faulty third-party product, we shall be entitled to assign our warranty claims against our supplier to the customer. In that case a claim can be asserted against us under the above provisions only if the customer has asserted the assigned claims against the supplier in court.
6.5 We shall be liable for defects in used goods, which we sell as "repaired" or "second-hand" goods and not as “reconditioned” or “as good as new”, only in accordance with Clause 7. If any used goods sold by us as “reconditioned” or “as good as new” prove to be defective, we shall only be under a duty to make one attempt to remedy such defect. If such attempt fails, the customer shall only be entitled to a reduction of the purchase price. Our liability according to Clause 7 remains unaffected.
6.6 Apart from that and in derogation from Clause 6.1 to 6.5, the customer shall have no rights.

7. Liability
7.1 We shall be liable for any culpable breach of our material contractual obligations in accordance with the statutory provisions. Material contractual obligations are obligations which characterise the typical purpose of the contract, the performance of which makes the proper implementation of the contract possible in the first place, and compliance with which the other contract party may rely on. However, unless our conduct has been either grossly negligent or intentional, we shall be liable only for the foreseeable damage, which typically occurs.
7.2 In all other cases we shall be liable if damage has been caused intentionally or grossly negligently by one of our statutory representatives or by a vicarious agent. Where we have given a guarantee, or for damage arising out of any injury to life, body or health, we shall be liable in accordance with the statutory provisions. Otherwise claims against us for damages arising out of a breach of duty are excluded.
7.3 Liability under the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected. 7.4 The claims for damages under Clauses 7.1 to 7.3 above shall be time-barred according to the statutory periods.

8. Drawings, Designs and other Documentation
8.1 Any drawings, designs, calculations and other documents, such as samples and models, provided by us or produced according to our specifications, shall become and remain our property. They may not be passed on to third parties nor may they be used for other purposes without our written consent. They must be returned to us after the order has been carried out or upon request.
8.2 In the case of deliveries made in accordance with drawings, models or details provided by the customer, the latter shall indemnify us against all intellectual property claims by third parties. Where the customer is in breach of contract, his intellectual property rights shall not prevent us from turning the goods to our own account.

9. Information and Technical Advice
Our information and recommendations are not binding and are made excluding all liability unless we have obligated ourselves expressly and in writing to give information and recommendations. The customer must investigate by ways of own series of tests whether a product is also suitable for the customer's particular applications. Furthermore, the details and information we provide do not constitute any promise as to the quality of our products.

10. Final Provisions
10.1 This Agreement shall be governed by German law. This does not include the UN Convention on Contracts for the International Sale of Goods, i.e. said convention does not apply.
10.2 The place of performance for all the obligations of both contracting parties shall be Todtnau / Germany.
10.3 The place of jurisdiction for all legal disputes in connection with this Agreement shall be Freiburg / Breisgau, Germany. Where we so choose, we may also bring an action against the customer in the place where his registered office is located.
10.4 The invalidity of individual provisions of this contract incorporating these General Terms and Conditions of Delivery and Service shall not affect the validity of the other provisions or the continued existence of the contract. The invalid provision - provided it is not a general term or condition - shall be replaced by a provision which, in its economic content, comes closest to the invalid provision. The same applies mutatis mutandis in the event of an omission.

Status as per 15th February 2012

General Terms and Conditions of Purchase of ZAHORANSKY AG, Todtnau / Germany

1. General
1.1 The following Terms and Conditions apply as applicable from time to time in relation to entrepreneurs ("Unternehmer") (Paragraph 14 German Civil Code
(BGB)), public-sector legal entities and special bodies or funds under public law (hereinafter referred to as "Supplier") and to all present and future orders placed by us and contracts entered into with us.
1.2 Any general conditions of business of the Supplier shall only apply if we have expressly consented to the application thereof.
1.3 Any legally significant declarations and notices that have to be given to us by the Supplier after conclusion of the contract (e.g. the setting of deadlines, notices of defects, a declaration of rescission or reduction in the price) are required to be in writing in order to be effective.

2. Contract Conclusion and Amendments to Product Specifications
2.1 Orders we place are revocable up until receipt of the acknowledgement of the order or - in the absence of any acknowledgement of the order - up until delivery.
The Supplier is obliged to confirm our order within a deadline of 3 working days by means of an order confirmation in text form or by making delivery. A belated acceptance shall be deemed to be a new offer and requires confirmation by us.
2.2 Unless expressly otherwise agreed, the delivery times stated by us are binding.
2.3 We are entitled to amend product specifications provided that said amendments can be implemented in the course of the Supplier's normal production process without any significant additional cost. We shall in each case reimburse the Supplier the proven, reasonable extra cost incurred due to the amendment. If such amendments result in delays in delivery, which cannot be avoided in the Supplier's normal production and business activity using reasonable efforts, the originally agreed delivery date shall be postponed accordingly.

3. Prices and Payment Terms
3.1 The agreed prices are fixed prices. All prices are stated exclusive of value added tax, but inclusive of packaging, insurance, carriage and other incidental costs.
3.2 Invoices must state the date of dispatch and must be submitted to the invoice address stated in our order following delivery. Unless otherwise agreed payments shall be made
- within 14 days following receipt of the invoice and delivery with the deduction of a 3% cash discount
- within 30 days following receipt of the invoice and delivery without any
deductions whatsoever
In the case of contracts for work and services (Werkverträge) the date of
acceptance shall apply instead of the date of delivery. Acceptance for the purpose of this clause 3.2 is deemed completed at the latest 15 days following delivery. Payment shall not be deemed to be any acknowledgement of proper performance.
3.3 Payments on account can only be demanded on the basis of a separate
agreement. Payments on account also qualify for the deduction of a cash discount.
3.4 The Supplier shall be authorized to exercise a right of retention only insofar as his counterclaim is based on the same contractual relationship or on an undisputed claim or a claim which has become final and absolute. He may only offset counterclaims that are undisputed, or counterclaims that have become final and absolute or counterclaims that are reciprocal to our claims.

4. Delivery Dates, Contract Penalty
4.1 Whether agreed delivery deadlines and dates have been complied with shall
depend on the date the subject matter of the contract is received at the receiving point stated by us; in the case of deliveries involving installation, assembly or other services, it shall depend on the date of their acceptance. We are under no obligation to accept delivery before the agreed delivery date. If the Supplier cannot comply with the agreed delivery date, he must inform us without undue delay.
4.2 In the event of any delay in delivery for which the Supplier is at fault we can demand - in addition to further-reaching statutory claims - a lump sum as compensation for the damage caused by the delay in performance, which lump
sum shall be 1% of the contract value, however a maximum of 5% of the contract value. This shall be without prejudice to our right to claim any further proven damage due to delay in performance. The Supplier retains the right to prove that we did not suffer any damage whatsoever or only less damage.

5. Acceptance, Passing of Risk, Place of Performance
5.1 Dispatch shall be at the Supplier's risk and cost. If, owing to a special agreement, the freight charges are to be borne by us, the Supplier must choose the mode of dispatch that is most favourable for us. We are under no obligation to accept any part deliveries or excess deliveries, which have not been agreed.
5.2 The place of delivery shall be the receiving point stated by us. The risk of accidental loss and of accidental deterioration shall pass to us upon delivery of the subject matter of the contract to the place of delivery. If acceptance is required, said acceptance shall be relevant for the passing of risk. The acceptance must be effected in writing.
5.3 If we are unable to accept delivery as a consequence of circumstances, for which we are not answerable (stoppages due to internal or third-party industrial disputes, force majeure etc.), the risk shall not pass until the grounds for hindrance have been removed and the subject matter of the contract is available to us at the place of delivery. We are obliged to notify the Supplier without undue delay if any grounds for hindrance of this nature have occurred or it is expected that they will occur.
5.4 The place of performance for all obligations arising out of the contractual relationship shall be the place of our registered office (seat).

6. Warranty Claims
6.1 If the subject matter of the contract does not have the agreed quality or is defective for other reasons, our warranty claims shall be in accordance with the statutory provisions unless otherwise agreed below.
6.2 The general limitation period for warranty claims is 3 years. The period begins upon delivery of the goods or acceptance of the goods/services if acceptance is required. Any statutory provisions providing for longer limitation periods shall remain unaffected.
6.3 Irrespective of the contractual warranty claims the Supplier shall indemnify us from and against all claims by third parties, which are attributable to defects in the subject matter of the contract, for which the Supplier is answerable. This particularly applies to claims made on the basis of any intentional or negligent infringement of third-party intellectual property rights at the place of delivery and at the end product's place of destination known to the Supplier.
6.4 The Supplier must indemnify us from and against all claims based on product liability (“Produkthaftungsansprüche”) to the extent that the cause lay within his sphere of control and organization and he is himself directly liable in relation to third parties.
6.5 Our duty to inspect as part of the incoming lot control is limited to defects which are evidently revealed by an external examination, including examination of the delivery papers, and by our quality control by way of random sample tests (e.g. transport damage, incorrect or short deliveries).
6.6 Defects shall in any event have been reported in time if we report them to the Supplier within 5 working days after we have received the goods.
6.7 The Supplier shall be under a duty to cover his risk of liability by an insurance, and to provide us with proof of the cover upon demand.

7. The Provision of Materials by Us
7.1 Materials provided by us shall remain our property and must be stored, labelled and managed separately by the Supplier free of charge. The materials may only be used for fulfilling our orders. The Supplier shall bear the risk of loss and of deterioration of the materials provided.
7.2 Any processing or transformation of the materials provided shall be performed on our behalf. The parties are in agreement that we become (co-) owners of the new or transformed object. The Supplier must keep the new thing safe on our behalf, free of charge and exercising the care of an ordinary businessman.

8. Other Duties of the Supplier
8.1 All of the obligations under the contract must be fulfilled by the Supplier himself. A subcontractor may be engaged only with our prior written consent.
8.2 Delivery notes, consignment notes and invoices must always state our order numbers and article numbers in full. In addition the customs tariff number with the appurtenant country of origin must be stated for each purchase order position.
8.3 The Supplier shall manufacture the subject matter of the contract in compliance with the respective quality, environmental, energy and security provisions applicable to the manufacture of the subject matter of the contract by Supplier.
The Supplier shall comply with the German Product Safety Act (ProdSG) and with all ISO, EN, DIN and VDE standards to the extent the same are applicable to the manufacture of the subject matter of the contract at the place of manufacture.
8.4 To ensure the quality of its products, the Supplier undertakes to establish, apply, maintain and continuously optimize and enhance an effective quality management system and to adopt only appropriate procedures.

9. Intellectual Property Rights, Confidentiality
We reserve title to and the copyrights in all pictures, plans, drawings, calculations, instructions for execution, product descriptions and other documents. Documents of this kind must be used solely for the contractual performance and must be returned to us once the contract has been dealt with. The documents must be kept secret from third parties, including after termination of the Contract. The obligation to maintain confidentiality shall not lapse until and to the extent that the knowledge contained in the documents handed over has become generally known.

10. Reservation of Title
Unless otherwise agreed by the parties, all forms of extended or prolonged
reservation of title are excluded so any reservation of title that may validly be declared by the seller shall apply only to the goods delivered to us and only until said goods have been paid for.

11. Final Provisions
11.1 The governing law shall be the law of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods is excepted from this, i.e. does not apply.
11.2 The place of jurisdiction for all legal disputes in connection with this Agreement shall be Freiburg/Br., Germany. We shall, however, be entitled to also assert our claims at the Supplier's place of general jurisdiction.

Position as per: October 2015

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ZAHORANSKY AG

(Headquarter Group)
Anton-Zahoransky-Strasse 1
79674 Todtnau-Geschwend
Black Forest – Germany

Tel.: +49-7671-997-0
Fax.: +49-7671-997-299

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