STANDARD TERMS AND CONDITIONS OF PURCHASE

STANDARD TERMS AND CONDITIONS OF PURCHASE

of Ströbel GmbH, Mühlsteig 31-33, 90579 Langenzenn, Germany

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1 Applicability

1.1 These Standard Terms and Conditions of Purchase (hereinafter referred to as the “Standard Terms”) shall apply to all business relations with our business partners and suppliers (hereinafter referred to as “Vendors”). These Standard Terms shall apply only insofar as the Vendor is an entrepreneur (within the meaning of section (§) 14 of the German Civil Code (BGB)), a legal entity under public law or special fund under public law.

1.2 Unless otherwise agreed upon, these Standard Terms shall apply in the version valid at the time the buyer places the order. They shall furthermore apply as a framework agreement to similar future contracts without a need to refer to them in each individual case.

1.3 These Standard Terms shall apply to the exclusion of any other terms and conditions. We shall not acknowledge any conflicting, deviating or complementary terms and conditions of any Vendor unless we have expressly agreed to the application of such Vendor’s terms and conditions. This shall apply even if we accept any Vendor’s delivery without reservations whilst being aware of the Vendor’s (conflicting or deviating) terms and conditions.

1.4 Any legally relevant statements and notifications which are to be submitted to us by the Vendor (e. g. the communication of deadlines, reminders, notice of rescission) shall only be effective if made in writing or in text form. Any further statutory formal requirements, in particular in case of doubt about the authority of the declaring party, shall remain unaffected.

1.5 Our purchase order shall only become binding after having been placed by us in writing. The Vendor shall notify us of any obvious mistakes (e.g. spelling or calculation errors) so as to allow us to correct them.

1.6 Vendor shall confirm our purchase order within 2 working days in writing or accept it without reservations, in particular, by shipping the goods.

1.7 Any reference to any applicable statutory provision is included for the sake of clarity only. The statutory provisions shall apply even without such reference, insofar as they have not been actually amended or expressly excluded by these Standard Terms.

2 Delivery Date and Delay in Delivery

2.1 The delivery date stated by us in the purchase order shall be binding. The Vendor shall inform us forthwith in writing of any foreseeable delay in delivery.

2.2 If the Vendor fails to deliver the ordered goods in a timely manner, we shall be entitled - without prejudice, and in addition to, any other statutory rights and remedies - to claim damages for delay amounting to 1 percent, per full week, of the net price (agreed upon for the shipment in question), subject to a maximum of 5 percent of the net price that was agreed for the shipment in question. Any further statutory rights to be paid damages for late delivery shall remain unaffected. The Vendor shall be reserved the right to demonstrate that we have incurred no damages or that the damages incurred are considerably lower than the damages claimed.

3 Performance

3.1 The Vendor shall not be entitled to outsource the performance of any obligation hereunder to any third party, e.g. a subcontractor, unless we have expressly agreed to such outsourcing.

3.2 Delivery shall be effected at the place of delivery specified in the purchase order. Unless otherwise agreed or specified, delivery shall be effected at our place of business in Mühlsteig 31-33, 90579 Langenzenn (Germany). The place of destination shall also be the place of performance and/or of any subsequent performance.

3.3 In the event of default of acceptance, the statutory provisions shall apply, to the exclusion of section (§) 296, sentence 2, of the German Civil Code (BGB). If we are in default of acceptance, the Vendor shall be entitled to further rights exceeding those pursuant to section (§) 304 of the German Civil Code (BGB) only if we have expressly undertaken to cooperate and are responsible for the failure to cooperate.

4 Terms of Payment and Prices

4.1 The price specified in the purchase order is binding and inclusive of the legally applicable VAT, unless VAT is indicated separately.

4.2 Unless otherwise agreed, the price specified in the purchase order is inclusive of all services and ancillary services performed by the Vendor as well as of all ancillary costs, in particular costs of proper packaging, shipping costs, as well as costs for transport and third party liability insurances, if any.

4.3 The agreed upon price shall be due for payment within 30 calendar days from complete delivery and performance - or from acceptance, in case the parties have agreed on acceptance - and upon receipt of a duly issued invoice. If the invoice is paid within 14 calendar days from due date, the Vendor will grant us a discount of 3% that can be deducted from the invoiced net amount.

4.4 We do not owe maturity interests (Fälligkeitszinsen). The provisions of the German Civil Code (BGB) on late payment shall remain unaffected.

4.5 Our rights to offset or withhold payments as well as the “defence of unperformed contract” (Einrede des nicht erfüllten Vertrages) shall be governed by the applicable provisions of law. We shall be entitled to withhold payments that are due for as long as we are entitled to any claims against the Vendor for incomplete or defective deliveries.

4.6 The Vendor shall only be entitled to offset or withhold payments insofar as any counterclaim asserted by the Vendor is legally effective or uncontested.

5 Confidentiality and Retention of Title

5.1 We shall retain title and copyright to all illustrations, layouts, drawings, calculations, instructions, product descriptions and other documents transmitted or provided by us. The aforesaid documents shall be used only for the purpose of fulfilling the contract and shall be returned to us on completion of the contract. The said documents shall be kept confidential vis-à-vis third parties, even upon termination of the contract. The obligations of confidentiality will cease at such time when and to the extent that the know-how contained in the provided documents becomes generally known.

5.2 The aforesaid shall apply mutatis mutandis to any substances, materials, software, tools, samples, patterns and other items and know-how which we make available to the Vendor for production purposes.

5.3 As long as they have not been processed, the aforesaid items shall be stored separately and shall be adequately insured against destruction and loss, at the Vendor’s expenses.

5.4 Any processing of the items provided by us to the Vendor for production purposes, combining them with existing products, or incorporating them into existing products shall always be carried out on behalf of Ströbel GmbH.

5.5 In the event that we process the goods supplied to us by the Vendor, we shall be deemed to be the manufacturer of the product in question and – by processing them – shall acquire title to the product in question, in accordance with the applicable provisions of law.

5.6 Transfer of title to the goods to us shall be effected unconditionally and, in particular, irrespective of payment of the purchase price. In the event that we agree to accept, in an individual case, a transfer of title that is made conditional on payment of the purchase price, the Vendor’s retention of title shall cease to exist once the purchase price for the supplied goods has been paid. Even in case we agree to accept the Vendor’s retention of title, we shall be entitled to resell the goods in the ordinary course of business - even prior to payment of the (full) purchase price - assigning in advance to Vendor our claims arising from the resale of the goods. Any other type of retention of title shall be excluded, notably prolonged or forwarded retention of title or retention of title extended to the processing of the delivered goods.

6 Defects and Quality Assurance

6.1 The Vendor’s liability for defects shall be governed by statutory provisions, unless otherwise specified below.

6.2 Any product description that by being mentioned or referred to in the contract or in our purchase order has become an integral part of the contract in question shall be deemed an agreement on the quality of the purchased product, regardless whether such product description was produced by us, by the Vendor or by the manufacturer.

6.3 Our obligation to inspect the delivered goods and give notice of defects shall be governed by the applicable provisions of law (sections (§§) 377 and 381 of the German Commercial Code (HGB)), provided that: In the event the parties have entered into a quality assurance agreement, our obligation to inspect the delivered goods shall be limited to the inspection for apparent defects, notably transport damages, and checks as to whether type and quantity of the delivered products comply with the purchase order. In all other respects, our duties with regard to the inspection of incoming goods shall be limited to the inspection for apparent defects as well as for defects that can be detected by random sampling. In case the parties have agreed on acceptance, we shall not be required to perform any particular separate type of inspection.

6.4 A notice of defects shall, in any case, be deemed given in a timely manner and without undue delay if it is sent within 10 working days from becoming aware of the defect or, in case of apparent defects, from the date of delivery. The statutory right to be granted, in a particular case, a longer period for giving notices shall remain unaffected.

6.5 If the Vendor fails to comply with its subsequent performance obligations within a reasonable time imposed by us, we shall be entitled to remove the defect on our own and to claim to be reimbursed by the Vendor for the expenses necessarily incurred by us in this regard. We shall furthermore be entitled to demand advance payment of the necessary costs that are likely to be incurred for the removal of the defects. If the Vendor failed to comply with its subsequent performance obligations or if subsequent performance is inacceptable for us, e.g. for particular urgency, risks to operational safety, or imminent disproportionate damages, a deadline can be dispensed with. We shall immediately inform the Vendor of any circumstances under which a deadline can be dispensed with. Any rights based on defects beyond these Standard Terms to which we are entitled by law shall remain unaffected.

6.6 The Vendor shall enter into a quality assurance agreement containing, in particular, agreements regarding the quality of the ordered goods, the quality controls to be performed by the Vendor in the course of production and delivery, and the test certificates to be provided.

7 Supplier Recourse

7.1 Our rights of recourse within the supply chain shall be governed by applicable provisions of law, unless otherwise specified below.

7.2 Prior to admitting or satisfying any claim of any of our customers that is based on a defect for which we may have recourse against the Vendor, we shall inform the Vendor by briefly depicting the situation and shall request a written statement from the Vendor in this regard. If the Vendor fails to submit a substantiated statement within a reasonable time, and if no amicable solution can be reached either, the claim for defects that we have granted to our customer shall be considered as owed to our customer.

8 Manufacturer's Liability

8.1 Insofar as the Vendor is responsible for any damage caused by the product, Vendor shall indemnify us against any third party claims, provided that the cause of the product liability claim falls within the Vendor’s sphere of control and organisation and that the Vendor is liable vis-à-vis the respective third party.

8.2 Within the limits of its obligation to indemnify us, the Vendor shall reimburse us for any expenses incurred by us from or in connection with any third party claim, including expenses for recalls. We shall inform the Vendor of the content and scope of the recall activities - to the extent possible and reasonable - and give Vendor the opportunity to make a statement. Any rights beyond these Standard Terms to which we are entitled by law shall remain unaffected.

8.3 The Vendor shall effect and maintain a product liability insurance which covers an amount of at least €10,000,000.00 (in words: ten million euros) per claim for damages (for personal injury / damage to property).

9 Essential contractual conditions

9.1 Proof of preference:

Suppliers that are headquartered in the European Union shall supply Ströbel GmbH only with goods of preferential EU origin which meet the requirements of the free trade agreements. Supplier shall provide evidence of preferential or non–preferential origin, on the occasion of the first delivery at latest, by submitting a long-term supplier declaration. Ströbel GmbH shall be immediately informed of any changes that occur during any given year in writing. The long-term supplier declaration shall be renewed by supplier once a year, without being asked to do so, and at the supplier's expenses.

Suppliers that are headquartered outside the EU shall indicate, in a binding statement contained in their quotation, whether the goods supplied are originating goods pursuant to the relevant free trade agreement, provided that the country from which the goods are sent has signed such an agreement with the EU. An adequate proof of preferential origin shall be provided by supplier. In the event that supplier does not provide the above mentioned proof, although he had confirmed preferential origin before, Ströbel GmbH reserves the right to invoice the supplier for any extra costs incurred by Ströbel GmbH due to accordingly higher import duties.

9.2 Export control:

(1) Supplier shall inform Ströbel GmbH as soon as possible, prior to the delivery date, in writing, of any licensing requirements which his products are subject to pursuant to any applicable German, European (EU), U.S. export, customs and foreign trade laws and regulations, as well as pursuant to the export, customs and foreign trade laws and regulations of the country of origin of his products. To this end, supplier shall provide the following information and data:

      • the export list no. pursuant to annex AL to the German Foreign Trade and Payments Regulation (Außenwirtschaftsverordnung) or any comparable list positions of any relevant export lists;
      • the Export Control Classification Number (ECCN) pursuant to the U.S. Commerce Control List (CLL), insofar as the goods are subject to the U.S. Export Administration Regulations (EAR);
      • the statistical product number (HS / CN code);
      • the country of origin (trade / non-preferential origin),

Country of origin labelling: D – third country / E = EU / F = EFTA;

      • (long-term) supplier declarations on preferential origin (for EU suppliers) or certificates regarding preferences (for non-EU suppliers);
      • any other information and data which Ströbel GmbH might require for export, import, and – in case of resale – for re-export purposes.

Supplier shall inform Ströbel GmbH, without delay, in writing, of any changes regarding the above mentioned information and data.

(2) In the event that supplier fails to comply with his obligations pursuant to paragraph 1, supplier shall bear any expenses and damages as well as any other prejudices (e.g. additional foreign import duties, fines) incurred by Ströbel GmbH due to such failure. This shall not apply insofar as supplier is not responsible for the above mentioned failure to comply with his obligations.

10 Limitation Period

10.1 The contracting parties‘ mutual claims shall be subject to statutory limitation periods, unless otherwise specified below.

10.2 Notwithstanding section (§) 438, par. 1, n. 3, of the German Civil Code (BGB), the general limitation period for claims based on defects shall be 3 years from passing of risk. Insofar as (formal) acceptance has been agreed upon, the limitation period shall commence on acceptance of the deliverables.

11 Governing Law and Jurisdiction

11.1 These Standard Terms and Conditions of Purchase and the contractual relationship between us and the Vendor shall be governed by the laws of the Federal Republic of Germany, to the exclusion of the uniform international law, in particular the United Nations Convention on Contracts for the International Sale of Goods.

11.2 Insofar as the Vendor is a businessperson (Kaufmann) within the meaning of the German Commercial Code (Handelsgesetzbuch), legal person under public law, or a special fund under public law, the sole local and international place of jurisdiction for any and all disputes arising between the Parties from the contractual relationship shall be the competent court for the domicile of Ströbel Gmbh, 90575 Langenzenn 5 (Germany). The foregoing shall apply mutatis mutandis if the Vendor is an entrepreneur (within the meaning of section (§) 14 of the German Civil Code (BGB)). We shall also be entitled to file a law suit at the place of performance of the delivery or at the Vendor’s general place of jurisdiction.

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