General terms and conditions of business

General sales, delivery and payment conditions

for the company Rolf Windhösel GmbH + Co. KG,

Robert-Bosch-Strasse 2, 72820 Sonnenbühl-Undingen, Germany

Date: October 2012

Scope

(1) The following general sales, delivery and payment conditions apply exclusively for all our offers, deliveries and services.

(2) Contrary general terms and conditions of business of the customer will not be part of the contract, even without our express objection and even in the case that we make a delivery. We hereby reject confirmation to the contrary by the customer with reference to their own terms of business or purchase.

(3) The following general sales, delivery and payment conditions only apply to people acting in a commercial or freelance professional capacity (commercial parties as defined in and pursuant to Section 14 of the German Civil Code (BGB)).

(4) Where our general sales, delivery and payment conditions are implemented in our business with the customer, in as far as nothing else has been agreed in writing, they will apply to all further business relationships between the customer and ourselves – without requiring an explicit renewed reference to them.

Conclusion of the contract

(1) Our offers are freely revocable and should be understood by the customer as merely a response to a call for tenders within the sense of Section 145 of the German Civil Code (BGB), in as far as the offer has not been specified as binding. A contract is only entered into once we have issued written confirmation of the order, or with the delivery of the goods ordered.

(2) The written order confirmation – or, if this is not available, our quote – specifies the scope of the delivery and/or service.

(3) All details about our products, in particular the images, dimensions and service details – as well as other technical specifications – contained in our quotes and literature, should be regarded as approximate average values. Normal industry tolerances for quantities, weights, volumes and dimensions shall remain expressly reserved.

(4) Reference to dimensions, weights, colours, standards, similar technical regulations and technical specifications, descriptions and images of the delivery item in quotes and brochures and our advertisements only represent information about a property of our products if we have expressly declared the quality to be a property of the product; otherwise, it shall be regarded as a non-binding general description of performance.

(5) All agreements, ancillary agreements, assurances and contract changes must be made in writing. This also applies to the waiver of the requirement for the written form itself.

(6) Verbal agreements – regarding designs, dimensions and similar for custom-made products – must be confirmed in writing.

(7) The obligation to deliver an item defined only by its classification shall not be regarded as an assumption of procurement risk. We will only take on a procurement risk with an express written declaration.

(8) For call orders or acceptance delays due to the customer, we are entitled to purchase the materials for the whole order and manufacture the entire order quantity immediately. After issuing of the order, any customer change requests cannot be taken into account, unless this has been expressly agreed.

(9) Call orders which have not completely been divided into partial deliveries upon conclusion of the contract have a duration of maximum 12 months, calculated from the date the contract was concluded. Once this period has expired, we can either demand acceptance of the as yet not-delivered goods – or we can issue an invoice for the materials purchased and the work performed for the order.

(10) The customer must inform us in writing about any special requirements for our products, in good time before conclusion of the contract.

(11) We shall not be liable for deviations and errors resulting from documentation (drawings, samples or similar) submitted by the customer.

(12) The customer shall inform us in writing at the quotation stage about any unusual stress which the items to be delivered will experience and highlight any other risks which may arise during their use.

Specimens, samples

(1) The properties of manufactured specimens, models or samples shall only become part of the contract if this has been expressly confirmed by us in writing. The customer is not authorised to use or pass on specimens and samples.

(2) We retain the property rights, copyrights and other industrial property rights to all the specimens, samples, drawings and other documentation we provide. If the order is not placed, they must be returned without delay.

(3) Requested samples are generally only supplied upon payment of a fee.

Prices, payment conditions

(1) All payments to us must be made exclusively in EUR. Any exchange-rate risks shall be borne by the customer.

(2) As far as not otherwise agreed, the list prices, alloy surcharges and shipping tariffs which are valid on the day of delivery are applicable.

(3) Statutory value added tax is not included in the prices. If applicable, the statutory amount will be added to the invoice on the day the invoice is issued.

(4) If not otherwise stated on the order confirmation, prices are ex-works (EXW, Incoterms 2010). Shipping, customs duties, ancillary import costs and packaging must be paid for separately by the customer.

(5) We are entitled to invoice the customer at cost price for pallet cages, drums, coils and similar packaging – if these are not returned to us without delay (within three months at the latest), in good condition and at the expense of the customer. We do not accept returns of paper and cardboard packaging.

(6) We are entitled to unilaterally increase our prices (Section 315 of the German Civil Code (BGB)) in the event of an increase in material procurement costs, wage costs and ancillary wage costs, energy costs and costs for environmental requirements – if the period between the conclusion of the contract and delivery is more than four months.

(7) If we enter into a framework order or call order agreement and there are considerable fluctuations in material prices during the confirmed framework / call order period for orders which have not yet been fulfilled: we reserve the right to adjust our prices with a four-week notice period if our costs – particularly due to a rise in material prices, wages or energy costs – increase by more than a total of 5 percentage points. If the price increase is more than 10 percentage points, the customer is entitled to cancel the order.

(8) Our invoices are payable within 30 days from the invoice date, without deduction. Payments within 10 days of the invoice date will receive a 2% discount. We are also entitled to demand payment for goods delivered (delivery versus payment). If a discount has been agreed, this is calculated from the net amount and is only permissible if the customer has paid all other accounts payable resulting from our business relationship, which are more than 30 days old. Payment by way of bill of exchange excludes a discount deduction.

(9) All payments received will be applied first to the costs, then to the interest and finally to the oldest debt, independent of customer provisions which may state otherwise.

(10) We only accept cheques and bills of exchange upon prior agreement and on account of performance. Interest and costs shall be borne by the customer.

(11) The customer may only offset an account or use their right of retention if their claims are indisputable or established in law.

(12) Unless otherwise agreed, services performed which are not part of the agreed scope of delivery shall be charged at our usual hourly rates.

(13) If we receive returns for incorrect orders or returns without cause, we are entitled to invoice the customer for an administration fee of 20% of the net price of the returned goods – however at least EUR 250. The customer retains the right to prove there was no cost incurred or that the cost was lower.

(14) Even without a reminder for payment, the customer is in arrears if payment has not been made 31 days after delivery. Once in arrears, interest on the balance due shall be charged at 8% above the respective basic interest rate. The payment date is the date we receive the money or our account is credited with the amount due. This shall not affect the assertion of any further damages.

(15) If payment conditions are not adhered to, an application for insolvency or settlement proceedings is instituted with respect to the customer’s assets, circumstances become known or recognisable that, in our sound commercial judgement, give rise to justified doubt about the customer's creditworthiness – also including such facts that existed when the contract was concluded but which were unknown to us or should have been known to us – we shall be authorised, notwithstanding further statutory rights in such cases, to cease further work on current orders or delivery, and to demand advance payments or the provision of appropriate securities for deliveries still outstanding and, after a reasonable extension period has elapsed without such securities being provided, to withdraw from the contract, irrespective of other statutory rights. The customer is obliged to reimburse us for all damages incurred by non-performance of the contract.

(16) If payments are deferred and made later than agreed, we are entitled to charge interest at 8% above the basic interest rate applicable at the time the deferment arrangement is made, including for the deferment period, without notice of default being required.

(17) For small orders, we will charge the relevant applicable minimum price.

Obligations regarding delivery and acceptance

(1) Dates and deadlines shall be considered to be approximate unless they have been expressly highlighted as binding in our confirmation letter.

(2) Delivery periods start with the receipt of our order confirmation by the customer: however, not before all details regarding implementation of the order have been clarified and other preconditions to be fulfilled by the customer (e.g. customer-supplied goods, approvals, documentation, advance payment) have been performed. The same applies to delivery dates. If the customer demands changes after awarding the order, a new delivery period shall start once we have confirmed the change.

(3) Agreed delivery dates shall not be considered as fixed dates. The delivery period will be regarded as having been fulfilled if the delivery item has left our premises by time it lapses, or – in as far as the dispatch is delayed or impossible through no fault of our own – if its readiness for dispatch has been communicated to the customer.

(4) If acceptance of the goods or dispatch is delayed for a reason for which the customer is responsible, after the setting and expiration of a 14-day grace period, at our discretion, we are entitled to demand either: immediate payment of the purchase price, withdrawal from the contract, or to reject fulfilment and to demand payment of damages instead of the full payment due. Notification of the grace period deadline must be made in writing. We are not required to refer once again to the rights pursuant to this clause. In the event of our claiming payment of damages, this shall amount to at least 15% of the net delivery price. Both parties reserve the right to prove that a different amount of damages applies, or that damages have not been incurred.

(5) If we are to blame for not meeting an agreed delivery deadline, after the expiration of an appropriate grace period, the customer is entitled to assert their rights as stipulated in Sections 280, 281, 284, 286, 323 of the German Civil Code (BGB), under the respective conditions stated therein. The compensation for the delay is limited to a maximum of 5% of that part of the delivery which did not occur as per the contract. The customer is not entitled to withdraw from the contract if they themselves are in default of acceptance. The customer retains the right to prove the damages were higher. Further claims by the customer shall exist only subject to the provisions of the following Section 11. If we fail to provide the service on the date or within a period specified in the contract, the customer can only withdraw from the contract if, in the contract, they have tied their interest in the service to its timeliness.

(6) Deliveries before expiration of the delivery period, appropriate partial deliveries, and reasonable deviations from the quantities ordered of up to plus/minus 10%, are permissible.

(7) The date of the ready-to-ship notification is regarded as the date of delivery or, alternatively, the date the goods are dispatched.

(8) We are not in arrears if the customer is delayed in their fulfilment of obligations to us, including those from other contracts.

(9) Subject to other written agreements, in as far as there is a contractual or statutory provision for it, acceptance is considered to have taken place within a period of 10 days after delivery.

Reservation of self-delivery; force majeure and other impediments

(1) We will inform our customers in good time and in writing if, for reasons beyond our control, we do not receive deliveries or services from our suppliers, or the deliveries are incorrect or delayed, or in the event of force majeure. In this case – as long as we have fulfilled our existing obligation to provide information and have not taken on the procurement risk – we are authorised to delay the delivery by the duration of the impediment plus an appropriate period of time or, due to the not yet fulfilled part of the order, to completely or partially withdraw from the contract. Events of force majeure are strikes, lock-outs, official intervention, power shortages, raw materials shortages, transport bottlenecks and/or operational hindrances for which we are not responsible, such as fire, water and machine damage – and any other hindrances that, when considered objectively, were not caused by our negligence.

(2) If a delivery date or a delivery period is agreed as binding and, due to events as per Section 6 (1), the agreed delivery date or delivery period is exceeded – after the expiry of an appropriate grace period during which the delivery was still not achieved – the customer is entitled to withdraw from the contract, due to part of it still being unfulfilled. The customer has no further rights.

Packaging, shipping, transfer of risk and delay in acceptance

(1) As far as not otherwise agreed, we shall select the packaging, shipping method and transport route.

(2) Unless otherwise agreed, our deliveries are made ex-works.

(3) Upon written request by the customer, the goods shall be insured against the risks specified by the customer, at the customer’s expense.

(4) The risk of accidental loss or accidental deterioration passes to the customer upon handover of the goods to be delivered to the customer, the shipping company, the freight agent or other enterprise intended to perform the shipment – at the latest, however, when the goods leave our factory, warehouse or subsidiary. Even if we take on the transport costs, the transport risk shall be borne by the customer.

(5) If the shipment is delayed because we have asserted our right of retention – due to the customer being completely or partially in payment arrears, or for any other reason which is the fault of the customer – the risk is transferred to the customer from the date of the ready-to-ship notification at the latest.

Reservation of proprietary rights / retention of title

(1) We retain the title to all the delivery items, order items and goods that we supply (hereinafter referred to overall as "goods subject to reservation of proprietary rights") until all our demands resulting from the business relationship with the customer – including future claims arising from contracts concluded at a later date – are paid. This also applies to a balance in our favour, when any or all demands by us are incorporated in a current invoice (current account) and the balance is drawn.

(2) The customer must insure the goods subject to reservation of proprietary rights sufficiently, particularly against fire and theft. Insurance claims in the case of damage affecting the goods subject to reservation of proprietary rights are herewith assigned to us, to the value of the goods subject to reservation of proprietary rights.

(3) The customer is entitled to sell on the delivered goods in the normal course of their business activities. Other dispositions, especially pledges or assignment as security, are not permitted. If, when resold, the goods subject to reservation of proprietary rights are not paid for immediately by the third-party buyer, the customer shall be obliged to resell under retention of title only. The entitlement to sell on the goods subject to reservation of proprietary rights is revoked immediately if the customer discontinues their payment or is in arrears regarding their payments to us.

(4) The customer hereby transfers to us all claims – including securities and ancillary rights – arising from or in conjunction with the further sale of the goods subject to reservation of proprietary rights against the end consumer or against third parties. The customer may not make any agreement with their buyers which excludes or negatively affects our rights in any way or invalidates an advance assignment of the claim. If the goods subject to reservation of proprietary rights are sold with other items, the claim against the third-party buyer shall be assigned as the amount of the delivery price agreed between us and the customer – in as far as the amounts from the invoice cannot be determined for the individual products.

(5) The customer remains entitled to collect the goods assigned to us, unless we revoke this entitlement, which we are permitted to do at any time. At our request, the customer is obliged to provide us with the information and documents necessary for collection of the assigned accounts and, unless we do so ourselves, to notify their buyers immediately of the assignment to us.

(6) If the customer adds the receivables from selling on the goods subject to reservation of proprietary rights to an existing current account relationship with their buyers, they shall already assign a final balance to us now, which is recognised to be in their favour, corresponding to the total receivables from selling on our goods subject to reservation of proprietary rights, which were used for the current account relationship.

(7) If the customer has already assigned claims from the resale of the goods supplied or to be supplied by us to third parties – in particular due to recourse or non-recourse factoring – or if the customer has entered into any other agreements under which our present or future security rights pursuant to Section 8 might be impaired, the customer shall notify us immediately. In the case of recourse factoring, we are entitled to withdraw from the contract and demand release of the already-delivered goods. The same applies in the case of non-recourse factoring if the customer – according to the contract with the factor – cannot freely dispose of the purchase price of the claim.

(8) In the event of breach of contract, in particular, default of payment, we are entitled – without having to withdraw from the contract in advance – to request the return of all goods subject to reservation of proprietary rights. In this case, the customer is obliged to release the goods directly, in as far as the breach of duty by the customer is not insignificant. We shall be granted access to the customer’s business premises at any time during normal office hours to determine an inventory of the goods supplied by us. With the return of the goods subject to reservation of proprietary rights, withdrawal from the contract only applies if we expressly state this in writing, or if mandatory legal provisions require this. The customer must inform us in writing without delay about any access by third parties to our goods subject to reservation of proprietary rights or claims transferred to us.

(9) If, for us, according to the above provisions, the value of the existing securities exceeds that of the secured receivables by a total of more than 10%, we are obliged to release securities to that extent at our discretion, should the customer request it.

(10) We handle and process goods subject to reservation of proprietary rights as manufacturers within the meaning of Section 950 of the German Civil Code (BGB) – however, without any obligation upon us. If the goods subject to reservation of proprietary rights are processed or irreversibly joined with other items that do not belong to us, then we acquire proportional co-ownership of the new item: the ratio of our goods' invoice value to the invoice value of the other processed or joined items. If our goods are combined with other transportable items into a single entity which should be regarded as the main item, the customer shall already transfer the co-ownership to us now, in the same proportion. The customer shall keep the ownership or co-ownership for us, free of charge. The subsequently arising co-ownership rights shall be considered as goods subject to reservation of proprietary rights. At our request, the customer is obliged to provide us with the necessary information to track our ownership and co-ownership rights, at any time.

Warranty

(1) We are liable for material defects and defects of title of the delivery item, according to the following provisions.

(2) As a matter of principle, we only provide warranties for certain properties if we have confirmed this expressly in writing. We shall only be deemed to have given a guarantee if we have indicated a property as "guaranteed" in writing.

(3) Statements made by us should only then be regarded as an acceptance of a quality guarantee, if they have been expressly described as such.

(4) The customer must report detectable defects to us in writing without delay, at the latest, however, 8 days after provision of the service – also regarding a part of the service which the customer can use. Hidden defects must be reported to us in writing without delay, at latest within the warranty period stated in Section (5). In addition, should defects be recognisable upon delivery, the relevant transport company/delivery service must be notified about it and the defects recorded on their shipping documentation – in particular, on the consignment note. In this case, a copy of the consignment note must be sent to us without delay. Notices of defects must include a description of the defect which is as detailed as possible. Any notice of defect not made in due time or in the correct form shall exclude any warranty claims of the customer. If defects regarding the number of items and weight were already noticeable upon delivery – according to the afore-mentioned inspection obligations – upon receiving the goods, the customer is obliged to complain about such defects to the transport company/delivery service, and have them certify the complaint. In this respect, any notice of defect not made in due time or in the correct form shall also exclude any warranty claims of the customer.

(5) As far as not otherwise agreed, all warranty rights elapse 12 months after transfer of risk. The period of limitation is not restricted when the delivered item has been used in a construction – in line with its normal usage – and has caused the construction to be defective, and in the case of Section 478 of the German Civil Code (BGB) (right of recourse). Instead, the statutory limitation period applies.

(6) Unless otherwise specified in this Section 9, our warranty for material defects and defects of title shall be limited to supplementary performance. Within the scope of our supplementary performance obligation, we are entitled, at our discretion, either to remedy the defect or to provide a replacement. If we fail to comply with this obligation within a reasonable period, or if the remedy fails despite repeated attempts, the customer shall be entitled to reduce the purchase price or to withdraw from the contract. A cancellation of the contract is excluded if the defect is insignificant. Furthermore, in as far as we have provided defect-free partial deliveries, withdrawal from the entire contract is only permissible if it can be proven that the customer no longer has an interest in the part of the delivery that has already been provided. Any more substantial claims, particularly claims for reimbursement of expenditure or damage compensation claims shall be applicable only in accordance with the provision in Section 11. Replaced parts shall be returned to us at our request and our expense.

(7) The customer shall return the defective goods to us for rework or replacement at their own risk, unless a return is not possible due to the type of delivery. We shall bear the transportation costs for supplementary performance – however, only from the location to which the goods were delivered as per the contract, and only up to the purchase price at most. Replaced delivery items – or parts of these – shall become our property, or remain our property.

(8) The customer must give us sufficient time and opportunity to perform the rework or deliver the replacement. Only in urgent cases which endanger operational safety, to prevent excessive damage, or if we are late with rectification of the defect, the customer is entitled – after notifying us in advance – to rectify the defect themselves or have a third party perform the repair, and to demand appropriate repayment of the costs.

(9) We are under no obligation to provide a warranty if the customer has modified the delivered goods and the defect can be clearly traced back to this modification. We shall also not be liable for damages resulting from improper use or wilful destruction.

(10) Recourse claims as per Sections 478, 479 of the German Civil Code (BGB) shall only exist as far as the claim by the user was justified and only in the statutory scope – but not for goodwill provisions agreed with us – and presupposes fulfilment of obligations on the part of the party entitled to recourse, in particular, their compliance regarding the reporting of any defects.

(11) The processing or installation of items delivered by us is always deemed to be a waiver of the notice of defects – to the extent the defect was recognisable.

(12) Other breaches of obligations are to be reported without delay in writing – prior to the assertion of other rights by the customer – with the provision of a reasonable remedy period.

(13) For justified complaints concerning defects, the customer may only retain payments to an extent reasonably proportional to those defects. If the notice of defect is unjustified, we are entitled to demand reimbursement from the customer for the expenses incurred.

(14) In particular, no warranty claims will be recognised for the following cases: unsuitable or inappropriate use, normal wear and tear, incorrect or careless treatment, incorrect maintenance, unsuitable operating resources, mechanical, chemical, electrochemical, electrical or comparable influences not corresponding to the expected average standard influences.

(15) Defect claims are excluded if there is only an insignificant deviation from the agreed / usual quality or usability.

(16) Acknowledgement of material defects must always be made in writing.

Industrial property rights and copyright; defects of title

(1) Unless otherwise agreed in writing, we are obliged to fulfil delivery free of commercial property rights and third-party copyrights (in the following: property rights) only within the Federal Republic of Germany. If a third party makes justified claims against the customer due to an infringement of property rights by deliveries made by us and used according to contract, we shall be liable to the customer as follows: at our discretion and our expense, we shall either – obtain a right of use for the relevant deliveries, change the item so that the property right is not infringed, or replace it. If this is not possible for us to do on reasonable terms, the customer has the statutory rights to withdraw from the contract or to reduce the purchase price. The customer may not claim compensation for wasted expenditure.

(2) Our obligation to pay damages is as specified in Section 11.

(3) Our above-stated obligations shall only apply if the customer notifies us about any such claim asserted by the third party in writing and without delay, does not concede the existence of an infringement and leaves all defensive measures and settlement negotiations to us. If the customer ceases use of the delivery in order to minimise damages or for any other reason, the customer is obliged to notify the third party that ceasing use does not involve any acknowledgement of an infringement of property rights.

(4) The customer's claims shall be excluded if they are responsible for the infringement of property rights.

(5) Furthermore, customer claims shall be excluded in as far as the property rights were infringed due to special requirements defined by the customer, by an application we could not foresee, or because the delivery item was modified by the customer or used in conjunction with products not delivered by us.

(6) In the case of other defects of title, the provisions of Section 9 shall apply accordingly.

(7) More extensive claims or claims against us and our agents by the customer due to a defect of title – other than those stipulated in Sections 9 and 10 – shall be excluded.

Liability

(1) We shall only be liable for damages, for whatever legal reasons,

a) if we, our executives, or agents are culpable of intent or gross negligence

b) in the event of culpable damage to life, limb or health

c) in the event of culpable breach of fundamental contractual obligations