General Business, Delivery and Payment Conditions

1. Area of validityOnly the following terms and conditions apply for all our sales and other deliveries andservices, including contracts for services (Werkverträge), the supply of non-fungible goodsand advice and recommendations in dealings with companies, public-law legal entities andpublic-law special funds, insofar no individual deviations are agreed upon in the individualcase. Any deviating conditions or counter-confirmations from the customer obligate usonly if and insofar as we have expressly consented to these in writing. In particular, oursilence in response to such deviating conditions shall not be deemed to be recognition orconsent. Such deviating conditions or counter-confirmations from the customer are herebyexpressly objected to.2. Entry into contract, scope of delivery, deviations2.1. Our offers are made on a non-binding basis. The customer is bound by its order for 4 weeks. An order is deemed to have been accep-ted once when we have confirmed the order in writing or the goods have been delivered by us.2.2. Ancillary arrangements, guarantees and all other agreements are only valid if they have been expressly confirmed by us in writing.2.3. The customer is liable for the correctness of the documents to be supplied by it, particularly templates, samples and drawings.2.4. The information, drawings, illustrations and performance descriptions contained in catalogues, price lists or the documents belonging to the offer are approximate values usual in the branch. Deviations in quality, design and colour which are usual in trade and materials remain reserved when this is unavoidable as a result of the raw materials situation and/or due to technical reasons. No guarantee is given of compliance with specific weights, dimensions and quantities; deviations which are usual in the branch remain reserved.2.5. A reference to norms, similar technical rules, other technical information, descriptions and illustrations of the delivery item is only a performance description and not a quality guarantee. As a matter of principle, particular qualities of the goods are only deemed to be guaranteed by us if we have confirmed this expressly in writing.2.6.In the case of products made from foams, we reserve the right to have variations in densityand pore size as well as the appearance of individual larger pores, so-called shrinkage holes.3. Prices3.1. In principle, all prices are understood as being in Euros, including packaging usual in the trade, plus VAT.3.2. If usual in the trade, we supply packed. We arrange packaging, protection and/or transport assistance means in accordance with our reasonable discretion. They will be taken back at our warehouse. We do not bear the purchaser’s costs associated with transport back or its own disposal of the packaging. 10950/14 - Updated general conditions3.3.Insofar as prices are not named or are named only with the reservation “current list price”, the list prices applicable on the delivery date will be charged. However, this is the case only for delivery periods of more than two months and for price adjustments up to 4% in comparison to the date in our offer. In the case of higher price adjustments, a new price agreement is necessary. In the absence of such an agreement, the customer is entitled to a right to rescind the contract.3.4. If after entry into the contract third-party costs such as acquisition costs, manufacture costs, freight costs, assembly costs, insu-rance costs or public dues and encumbrances (e.g. customs duties, import and export fees) are newly introduced or increased, then we are entitled to add such additional burdens to the agreed price.4. Delivery periods4.1. Binding delivery dates and periods must be agreed upon expressly and in writing.4.2. Delivery periods commence upon receipt of our order confirmation by the customer, but not before all of the details of the execution of the order have been clarified and all other prerequisites to be fulfilled by the customer have been fulfilled, particularly all docu-ments,permits and approvals are available, and an agreed advance instalment has been received; the same shall correspondingly apply for delivery dates.4.3. Deliveries before the expiry of the delivery period are permissible. The date of communicating that the goods are ready for dispatch is deemed to be the delivery date, otherwise the date of dispatching the goods. We are entitled to make partial deliveries.4.4. If we are in default in delivery, the customer is obliged to set a reasonable supplementary period of at least 2 weeks. After the fruit-less expiry of this supplementary period, the customer can rescind the contract insofar as no announcement has been made by theexpiry of the period that the goods are ready for dispatch. Compensation claims and expenditure reimbursement claims – regard-less of the reason – exist only in accordance with section 11.4.5. We are not in default as long as the customer is in default with fulfilling obligations owed to us, including obligations from other contracts.5. Force majeure and other impediments5.1. Our delivery obligation is subject to the reservation of correct and timely supply to us. If we do not receive supplies or services from our suppliers for reasons which are not attributable to us, or do not receive them correctly or in a timely manner, or if force majeure events occur, then we are entitled to postpone the delivery by the duration of the impediment, or rescind the contract in whole or in part concerning the part not yet performed. Strike, lock-out, official interventions, energy and raw materials shortages, transport bottlenecks, operational disruptions which are not caused by fault, e.g. through fire, water and machine damage, and all other im-pediments which when viewed objectively were not caused culpably by us, shall constitute force majeure. The foregoing provisions shall apply even if circumstances described therein occur after we are in default. 10950/14 - Updated general conditions5.2. If a delivery date or a delivery period is bindingly agreed upon and if the delivery date agreed upon is exceeded due to events pursu-ant to section 5.1, the customer can ask us to declare within two weeks whether we want to rescind or deliver within a reasonable supplementary period. If we make no declaration, the customer can rescind the unperformed part of the contract.6. Dispatch and transfer of risk6.1. Insofar as nothing to the contrary is agreed upon in writing, dispatch by us occurs without insurance at the customer’s risk and expense. We reserve the right to choose the transport route and transport means. In the case of urgent or express shipment, the additional freight charges are borne by the customer. There is no remuneration for people who come to collect themselves.6.2. In the absence of agreement to the contrary, the risk is transferred to the customer upon handover of the goods to be delivered to the customer, the carrier, the freight carrier or the firm otherwise instructed to make the delivery, but no later than upon leaving the factory, the warehouse or the branch office. This is also the case if we have undertaken the delivery. Transport damage is to be noted on the delivery note immediately and confirmed by the freight carrier or determined by the railway or the mail service in the case of railway andmail shipment for the assertion of compensation claims. We only arrange transport insurance if there is a special instruction to do so, and at the customer’s expense.6.3.Goods announced to be ready for dispatch and delivery must be requested by the customer immediately. If goods which are ready for dispatch are not requested and accepted without undue delay, we can send the goods if we choose or store them at the customer’s expense and risk.6.4. Taking back goods which were ordered and duly delivered is excluded as a matter of principle. In exceptional cases, a return can take place after prior written agreement.7. Complaints about defectsThe customer or the recipient designated by it is obliged to check the goods without undue delay after receipt. After discovering defects, the processing of the defective item is to be stopped immediately. Obvious defects – including the absence of the qualities guaranteed – are to be notified in writing without undue delay, but no later than within 7 days after receipt of the goods, while hid-den defects are to be notified in writing without undue delay, but no later than within 7 days of their discovery. If the customer fails to give a timely notification in the correct form, the goods are deemed to have been accepted. The time of receipt by us is authorita-tive when determining the timeliness of the notification.8. Liability for defects8.1. In the case of justified complaints about defects, we are obliged as we choose to effect subsequent performance by delivering a flawless replacement item or to effect subsequent improvement. If for the purpose of subsequent performance we supply a flawless item, then ownership of flawed goods is transferred to us, in which regard the customer keeps the flawed goods on our behalf. Dis-posing of, further processing or passing on the 10950/14 - Updated general conditions defective goods is only permissible if we have given our written consent. We are entitled to refuse subsequent performance pursuant to the statutory provisions.8.2. We bear the labour costs and materials costs arising out of expenditure on a justified subsequent improvement; other costs, particularly disassembly and checking costs are not borne by us. If the principal takes the goods to a place other than the place of delivery, then the principal bears the additional costs of subsequent performance which arise as a result thereof.8.3. If we do not fulfil the subsequent performance obligation or do not fulfil it successfully, or if the subsequent performance is not reasonable for the customer, then as it chooses the customer can rescind the contract or reduce the price after it has set us a reasonable supplementary period, unless the supplementary period can be dispensed with pursuant to the statutory provisions. In the event of rescission, the customer is liable for deterioration, loss, destruction and loss of utilisation caused not only by breach of its own customary care, but rather for every circumstance for which the customer is answerable. In the case of only minor contract breaches, particularly in the case of only minor defects, the customer is not entitled to any rescission right.8.4. More extensive compensation claims and expenditure reimbursement claims of the customer’s due to or in connection with defects or defect consequential loss, regardless of the legal ground, exist only in accordance with section 11.8.5. Our warranty obligation ceases if the goods supplied by us do not have any defects, i.e. in particular if flaws are due to improper use, defective or careless handling, natural wear and tear and interference by the customer or third party in the delivery item, or the customer or third party has not followed our information regarding dimensions, storage or processing of the goods. The customer is also obliged to carry out checks at its expense in order to ascertain the suitability of the goods for the intended use; otherwise our warranty obligation ceases.8.6. Section 12 applies for the time-barring of the customer’s claims.8.7. In the event of malicious concealment of a defect or the assumption of a quality guarantee, the customer’s claims are determined exclusively pursuant to the statutory provisions.9. Payment conditions9.1. Deliveries of goods are payable at the latest on the due date shown in the invoice, free from postage and expenses, in the absence of such a date, within 30 days after the invoice date without any deduction. An agreed discount only ever pertains to the invoice value excluding freight and requires full settlement of all of the purchaser’s due debts at the time of the discount. Insofar as nothing to the contrary is agreed upon, discount periods commence from the invoice date. After the invoice becomes due, dueness interest, and after default has occurred, default interest, shall be charged. The date of receipt of the money by us or crediting to our bank account is deemed to be the date of payment. The right to assert more extensive damage and loss in the event of default in payment remains reserved. 10950/14 - Updated general conditions9.2. Cheques offered are accepted by us only on the basis of special agreement and only as payment pending full discharge of the debt. Credits for cheques apply subject to receipt with value date being the date on which we are able to dispose of the equivalent value.9.3. If payment conditions are not complied with or if circumstances become known which in our dutiful commercial discretion give rise to doubts about the customer’s creditworthiness, including such facts which already existed when entering into the contract but were not known to us or we should not have known them, all claims arising out of the business relationship become due immediately irrespective of the duration of any bills of xchange taken and credited. Without prejudice to more extensive statutory rights, in such cases we are entitled to demand advance payment or securities which are acceptable to us for outstanding deliveries, and after the fruitless expiry of a reasonable supplementary period for the rendering of such securities, to rescind the contract or demand com-pensation. In addition, we are entitled to forbid the onward sale or processing of the goods owned or co-owned by us and to demand their return to us or the granting of copossession at the customer’s expense.9.4. The customer only has a right of retention or set-off with regard to counterclaims which are undisputed or have been determined in a final and legally-binding manner.10. Retention of title10.1. All goods delivered remain our property (goods subject to retention of title) until satisfaction of all claims, particularly also the respective balance claims to which we are entitled in the framework of the business relationship (balance reservation). This applies also for claims arising in future and conditional claims, e.g. from acceptor bills of exchange, and even if payments are made towards specially-designated claims. This balance reservation ceases finally upon the settlement of all claims still outstanding at the time of the payment and covered by this balance reservation.10.2. The customer is obliged to sufficiently insure the goods subject to retention of title, particularly against fire and theft. Claims against the insurance due to an insured event affecting the goods subject to retention of title are hereby assigned to us in the amount of the value of the goods subject to retention of title.10.3. Processing the goods subject to retention of title is done on our behalf as manufacturer in the sense of § 950 of the BGB, but without obligating us. If our goods are processed with other items, which do not belong to us, or are inseparably mixed with such items, then we acquire the co-ownership of the new item in the proportion of the invoice value of our goods to the invoice values of the other processed or mixed items. If our goods are combined with other moveable objects and made into a unified item which is to be regarded as the main item, then the customer hereby transfers the co-ownership therein in the same ratio. The customer keeps the ownership or co-ownership for us without charge. The objects of the co-ownership rights created pursuant hereto are deemed to be goods subject to retention of title. Upon our request, the customer is obliged at any time to provide us with the information necessa-ry for the pursuit of our ownership or coownership rights.10.4. The customer is entitled to sell on the delivered goods in the usual course of business. Other disposals, particularly pledging or transferring ownership by way of security, are 10950/14 - Updated general conditions forbidden to the customer. If the goods subject to retention of title are not paid for immediately in the case of selling them on to third-party purchasers, the customer is obliged to sell them on only subject to retention of title. The entitlement to the onward sale and the further processing of the goods subject to retention of title ceases automatically if the customer stops its payments or is in default with payment to us.10.5. The customer hereby assigns to us all claims including securities and ancillary rights to which it is entitled arising out of or in connection with the onward sale of goods subject to retention of title against the end customer or against third parties. It may not enter into any agreement with its customers which excludes or detrimentally affects our rights in any way or eliminates the advance assignment of the claim. In the event of selling the goods subject to retention of title with other items, the claim against the third-party purchaser is deemed to have been assigned to us in the amount of the delivery price agreed upon between us and the customer, insofar as the amounts accruing on the individual goods cannot be determined from the invoice. In the event of the sale of co-ownership shares as goods subject to retention of title, the claim arising out of the onward sale is deemed to have been assigned to us in the amount of our co-ownership share.10.6. The customer remains entitled to collect the claims assigned to us until our revocation, which is permissible at any time. Upon our request, the customer is obliged to give us the information and documents necessary to collect the assigned claims, and, insofar as we do not do this ourselves, to notify its customers immediately about the assignment to us.10.7. If the customer puts claims arising out of the onward sale of goods subject to retention of title in a current account relationship existing with its customers, then it hereby assigns to us a recognised balance or final balance arising in its favour, in the amount of the sum which corresponds to the total amount of the claims put in the current account relationship which arise out of the onward sale of our goods subject to retention of title.10.8. If the customer has already assigned to third parties claims arising out of the onward sale of the goods supplied or to be supplied by us, particularly on the basis of genuine or not genuine factoring, or has entered into other agreement on whose basis our current or future security rights pursuant to section 10 might be detrimentally affected, it has to notify us of this without undue delay. In the case of a non-genuine factoring, we are entitled to rescind the contract and demand the return of goods already delivered. The same applies in the event of a genuine factoring if the customer cannot freely dispose of the purchase price for the claim pursuant to the contract with the factor.10.9. In the event of contract-breaching behaviour by the customer, particularly in the event of default in payment, pursuant to the statutory requirements we are entitled to effect rescission or to effect termination and consequently to take back all goods subject to retention of title; in such case, the customer is obliged automatically to hand them over. We may enter the customer’s business premises at any time during normal operating hours to determine the inventory of the goods delivered by us. The customer is obli-ged to notify us in writing without undue delay of all third-party inference with goods subject to retention of title or claims assigned to us.10.10.If the value of the securities in existence for us pursuant to the foregoing provisions exceeds the secured claims in total by more than 20%, we are obliged upon request by the customer to release securities to that extent in accordance with our choice. 10950/14 - Updated general conditions11. Exclusion and limitation of liability11.1. For all claims for compensation and expenditure reimbursement against us due to breach of duty for which we are responsible, regardless of the legal reason, i.e. in particular in cases involving material defects or defects in title as well as in the event of the breach of a duty arising out of a contractual obligation, we are liable in the case of simple negligence only in the event of a breach of essential duties which jeopardise the contract purpose, whose fulfilment is what makes the proper performance of the contract possible at all and on whose compliance the contract partner may usually rely (cardinal obligations). Otherwise our liability for simple negligence is excluded.11.2. In the event of liability pursuant to section 11.1 and liability without fault, we are liable only for the typical and foreseeable damage and loss.11.3. The customer decides on its own responsibility about the deployment of the goods or other services supplied by us. Insofar as we have not given a written confirmation about specific qualities and suitability of the products for a contractually-intended use, any application-technical advice in any case is non-binding. In addition, we are liable only in accordance with section 11.1 for advice given or not given which does not pertain to the qualities and usability of the product supplied.11.4. The exclusion of liability pursuant to sections 11.1 – 11.3 applies in the same scope in favour of our organs, legal representatives, executive and non-executive employees and other vicarious agents.11.5. Sections 11.1 – 11.4 do not apply insofar as we have mandatory liability by law, for example (1) pursuant to the German Product Liability Act, (2) due to loss of life, personal injury or damage to health which is due to a negligent or intentional breach of duty by us or one of our legal representatives or by one of our vicarious agents, (3) insofar as the cause of damage is due to intentional behavi-our or gross negligence by us or one of our legal representatives or by one of our vicarious agents, (4) if the customer asserts rights due to a defect arising under a guarantee of the quality or the certain duration of a quality, or (5) recourse claims in the consumer goods supply chain (§ 478 of the German Civil Code (BGB)),.12. Time-barringAll claims made against us due to a materials defect or a defect in title become time-barred 12 months after the statutory com-mencement of the warranty period unless the German Product Liability Act or other acts, particularly § 438 paragraph 1, number 2 of the BGB (construction works and items for construction works), § 479.1 of the BGB (recourse claims in the consumer goods supply chain) or § 634a paragraph 1, nr. 2 of the BGB (construction defects), prescribe longer periods. The time-barring of claims due to liability for damage and loss arising out of loss of life, personal injury, damage to health which is due to a negligent or intentional breach of duty by us or one of our legal representatives or vicarious agents and for other damage or loss which is due to an intentio-nal or grossly negligent breach of duty by us or one of our legal representatives or vicarious agents, is determined in accordance with the legal provisions. 10950/14 - Updated general conditions13. Proprietary rights13.1 The ownership right and copyright in cost estimates, drafts, drawings and other documents remain reserved. Providing access to third parties may only be done with our consent. Drawings and other documents belonging to the offers are to be returned upon request by us, or if the order is not placed.13.2 If when producing the goods pursuant to drawings, templates, samples or other information provided by the customer third-party proprietary rights are infringed, then the customer indemnifies us against all claims. In particular, we are not obliged to check the abovementioned documents, including in relation to existing third-party industrial property rights.14. Tools/mouldsInsofar as nothing to the contrary is agreed upon, as a matter of principle, only ratios separate from the goods value will be charged from the costs of tools or moulds to be produced. The customer does not derive any claim to these as a result of paying cost por-tions for tools/moulds; rather, they remain our property.15. Place of performance, legal venue, applicable law15.1 The place of performance for all contractual obligations is Bodenwöhr. The legal venue for all disputes, including lawsuits involving bills of exchange and cheque litigation, is the court with factual jurisdiction at the location of our company headquarters. However, we are also entitled to sue the customer at its general legal venue.15.2 Only the law of the Federal Republic of Germany shall govern all legal relations between the customer and us, excluding the application of the CISG dated 11 April 1980.16. Partial invalidityIn the event that individual contract terms are invalid, the other provisions remain in full force and effect. Invalid provisions are replaced automatically with such a provision which comes closest in the framework of the legally possible to what was wanted financially pursuant to the sense and purpose of the invalid clause. tremco illbruck GmbH & Co. KG, Von-der-Wettern-Str. 27, 51149 Cologne, Germany tremco illbruck Produktion GmbH, Werner-Haepp-Str. 1, 92439 Bodenwöhr, GermanyAs of: April 2014