General terms and conditions

STANDARD TERMS AND CONDITIONS OF SALE OF THE COMPANY GROUP OKE

1. Preamble

1.1 Deliveries and services of companies of the company group OKE (“seller”) shall only be effective according to the following Standard Terms and Conditions of Sale unless the parties have provided otherwise in an individual contract (“Individualvertrag”). Our services and deliveries are provided exclusively on the basis of these General Terms of Delivery. We do not recognise conditions of the customer which contradict, differ from or are additional to our own, unless we have expressly consented to their validity in writing. These General Terms of Delivery also apply if we unreservedly conduct the delivery/service to the customer in the knowledge of conditions of the customer which contradict, differ from or are additional to our own.

1.2 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of an offer, invoice or other document of information issued by seller shall be subject to correction without any liability on the part of seller.

1.3 The provisions of these Standard Terms and Conditions of Sale shall exclusively apply to merchants in the course of business only.

2. Orders and specifications

2.1 Offers of seller shall not be binding and are merely invitations to place binding orders with seller.

2.2 A contract is only concluded if an order of buyer has been accepted by seller by issuing a corresponding confirmation of the order. A confirmation of the order which deviates from the order submitted by buyer is deemed to be a new offer of seller.

2.3 Any specification, sales literature, quotation etc. shall be strictly confidential and must not be made available to third parties.

2.4 Buyer shall be responsible for the accuracy of any order submitted by buyer. Buyer shall also be responsible for giving seller any necessary information relating to the goods within a sufficient time to enable seller to perform the contract in accordance with its terms.

2.5 In case the goods are to be manufactured or to be processed by seller in accordance with a specification submitted by buyer, buyer affirms that those specifications are free from any third parties’ rights. Any infringement of a copyright, design, trade mark, the right to use a name or any other infringement of third parties’ rights resulting from seller’s use of buyer’s specifications shall be borne by buyer. In case buyer is responsible for the breach of duty buyer shall indemnify seller from any claim or title. In this case buyer shall indemnify seller from the entire costs of defense or any other losses, damages, costs and expensesresulting from the claims asserted against seller by third parties as a result of the infringement of the above mentioned rights.

2.6 Seller reserves the right to make any changes in the specification of the goods which are required to conform to any applicable statutory requirements or, where the goods are to be supplied to buyer’s specification, which do not materially affect their quality or performance provided that these deviations are customary.

3. Price of the goods

3.1 Prices agreed for delivery within a certain delivery period or for a certain day shall only be valid for such delivery period or day.

3.2 Seller reserves the right, by giving notice to buyer at any time before delivery, to increase the price of the goods in order to reflect an increase in the costs due to any factor beyond the control of seller (such as foreign exchange fluctuation, currency regulation, alteration of duties).

3.3 Except as otherwise stated within the order confirmation of seller, and/or unless otherwise agreed in writing between buyer and seller, all prices are given by seller on an “ex works basis”. In case seller agrees to deliver the goods otherwise than at the seller’s premises, buyer shall be liable to pay seller’s charges for transport, packaging and insurance.

3.4 Prices are exclusive of any applicable value added tax (VAT). VAT will be charged additionally in accordance with the statutory VAT rate valid at the time of issuing an invoice.

4. Terms of payment

4.1 As far as seller’s invoice does not contain any provisions of the contrary the price of the goods shall be due within 30 days of the date of the seller’s invoice.

4.2 Payment shall be effected by interbank payment transaction only; no cheque or bill of exchange will be considered as fulfillment of the payment obligation.

4.3 It may be agreed between the parties that buyer has to deliver a letter of credit issued by his bank (or any bank acceptable to seller). In this individual case it is assumed that any letter of credit will be issued in accordance with the Uniform Customs and Practice for Documentary Credits, 2006 Revision, ICC Publication No. 600.

4.4 In case the payment term is exceeded seller shall be entitled to claim interest in the amount of nine (9) percentage points above the base rate set by the European Central Bank. The calculation and charging of interest will take place at the last trading day of each month.

4.5 Buyer may only set-off with counterclaims which are undisputed or have been affirmed by final and binding court ruling. Buyer may only exercise a right to retention if its counterclaim is based on the same contractual relationship.

5. Delivery

5.1 Unless otherwise stated within the order confirmation delivery of the goods shall be made “ex works”.

5.2 The delivery time shall be agreed between the parties. Seller will indicate the delivery time in the order confirmation. The agreed delivery time shall begin with the receipt of the order confirmation, however, not prior to the production of the documents, authorizations and releases to be furnished by buyer. If an agreed delivery date is exceeded, buyer shall, in any case, set seller a reasonable grace period.

5.3 Occurrences beyond seller’s control, in particular cases of Force Majeure, through which the delivery or its transport becomes impossible or unreasonably difficult shall give seller the right to delay the delivery until the hindrance is ceased. These circumstances shall be communicated to buyer by seller without undue delay. Partial deliveries which have already been made shall be considered as an independent transaction; the settlement of the partial delivery may not be refused on account of the quantities still outstanding.In case delivery will be delayed in excess of one month buyer shall, excluding any claims for damages, be entitled to withdraw from the contract with respect to the quantity affected by the default of delivery. Under these circumstances also seller shall be entitled to withdraw from the contract.

5.4 Where delivery of the goods is to be made by seller in bulk, seller reserves the right to deliver up to more or less of 3 % of the quantity ordered without any adjustment in the price. The quantity so delivered shall be deemed to be in the quantity ordered.

5.5 If buyer fails to accept delivery on due date or if buyer culpably infringes other obligations to cooperate seller shall be entitled to claim for reimbursement of any additional expenses. In case of default of acceptance of the goods by buyer seller shall arrange for the storage of the goods at the risk and costs of buyer. If required by buyer seller shall insure the goods at the cost of the buyer.

6. Transfer of risks

6.1 Risk of damage to or loss of the goods shall pass to buyer as follows:- In the case of goods to be delivered otherwise than at seller’s premises, at the latest at the moment when seller handed over the goods to the forwarding agent, the shipper or to any other person instructed with the execution of dispatch.- In case of default of acceptance of the goods by buyer at the moment when seller had tendered delivery of the goods.- In the case of goods to be delivered at the seller’s premises (“ex works”, incoterms 2010) at that time when the seller notifies the buyer that the good are available for collection.

7. Retention of title

7.1 All goods delivered by seller shall remain property of seller (the “retained goods”) until all outstanding claims arising from the business relations including interest and costs have been fully settled.

7.2 Subject to Section 107 paragraph 2 of the German Insolvency Code seller shall be entitled to withdraw from the contract and to demand return of the item purchased in case of a behavior of buyer contrary to the contract, in particular in case of default of payment. After having retrieved the item purchased seller shall be entitled to dispose of the goods otherwise. The receipts shall be count against the account payable by buyer less reasonable realization costs.

7.3 As long as the goods have not been fully paid buyer shall hold the goods as the seller’s fiduciary agent, and shall keep the goods separate from its property and that of third parties, properly stored, protected an insured. Buyer shall also mark the goods as property of seller.

7.4 Buyer shall be revocably entitled to sell the retained goods in a proper course of business. All claims and rights of buyer resulting from the resale of the retained goods and business relations to subsequent buyers shall already now be assigned to seller, no matter whether the retained goods are resold, unprocessed or processed. In case the retained goods are sold by buyer together with other goods which are not seller’s property, the assignment of buyer’s purchase price claim shall only extend to the value of the retained goods.

7.5 Buyer shall be revocably entitled to collect all debts arising of the resale of the retained goods as long as buyer meets its payment obligations. The power to collect debts and the right to process the retained goods shall expire, even without an express revocation, if and at the time buyer stops its payments, becomes in default with its payment obligations, in the event of an executed attachment or if a petition for opening of insolvency proceedings has been filed. Any outstanding amounts assigned to seller which buyer will receive thereafter shall promptly be accrued in a special account with the separate designation to be indicated by seller. Upon request of seller, buyer shall inform seller without undue delay in writing of the debtors of the assigned claim(s) and notify the debtors of the assignment of the claims to seller. Seller shall be entitled to inform buyer’s purchaser about the assignment and to collect the accounts receivable.

7.6 The retention of ownership shall also extend to any uniform item resulting from a combination or inseparable intermixture of the retained goods with other materials. If the retained goods are combined or inseparably intermixed with other materials not owned by seller, seller shall acquire co-ownership in the uniform item in the ratio of the invoice value of the retained goods to the invoice value of other materials not owned by seller. If the combination or intermixtures is effected in a way that any material of buyer is considered as the main thing, then buyer already now assigns to seller the co-ownership share specified in the previous sentence. Furthermore, the provisions of this section 7 concerning retained goods shall apply mutatis mutandis to the uniform item resulting from the combination or intermixture of the retained goods.

7.7 Any processing or transformation of the retained goods by the purchaser shall be deemed effected for seller with the consequence that seller shall directly acquire title to the newly manufactured items together with materials not owned by seller, seller shall acquire co-ownership in the newly manufactured items in the ratio of the invoice value of the retained goods to the invoice value of the other processed materials not owned by seller. Furthermore, the provisions of this section 7 concerning retained goods shall also apply mutatis mutandis to the newly manufactured items resulting from the processing or transformation of retained goods.

7.8 Buyer shall be considered as a depository for seller in respect of seller’s emerging property or coownership share, respectively.

7.9 If third parties take up steps to pledge or otherwise dispose of the goods – also after combination, intermixture, processing or transformation - as well as any other impairment of the property rights of seller in the retained goods - buyer shall immediately notify the seller in writing in order to enable the seller to seek a court injunction in accordance, with Section 771 of the German Code of Civil Procedure. If buyer fails to do so in due time he will be held liable for any damages caused.

7.10 The seller shall on demand of buyer release any part of the collateral if the realizable value of the collateral held in favor of seller exceeds the relevant total claim of seller to be secured by more than 10 %. It is to the seller’s decision to release those parts of the collateral suitable for him.

8. Warranties and exclusion clauses

8.1 Warranty claims may only be made if buyer has met his obligation to examine the goods and to give notification of defects as required by Section 377 of the German Commercial Code.

8.2 Seller warrants that all items delivered under this agreement will be free from defects in material and workmanship, conform to applicable specifications, and, to the extent that detailed designs have not been furnished by buyer, will be free from design defects and suitable for the purposes intended by the buyer.

8.3 Seller shall not be liable for the goods being fit for a particular purpose unless otherwise agreed upon, to which the buyer intends to put them.

8.4 Seller shall not be liable in respect of any defects in the goods arising from any design or specification supplied by buyer.

8.5 The warranty does not extend to parts, materials or equipment manufactured by or on behalf of buyer unless such warranty is given by the manufacturer of these parts to seller. The warranty of seller does not cover defects in or damage to the products which are due to improper installation or maintenance of buyer or any other misuse of buyer contrary to any directions given by seller.

8.6 Seller shall be liable in accordance with the statutory regulations for damages due to harm of life, bodily injury or harm to health, in case of intent or gross negligence of seller and/or its legal representatives and/or an auxiliary person of seller as well as for damages which are covered by a guarantee or assurance granted by seller. In case of slight negligence seller shall only be liable for typical foreseeable damages and only in case of a breach of a fundamental contractual duty by seller and/or its legal representatives and/or an auxiliary person of seller whose performance is required to achieve the aim of the contract and on which fulfillment the contractual partner could reasonably rely on. Any liability under the German Product Liability Act remains unaffected hereby.

8.7 The limitation of liability of this section 8 shall also apply in case buyer will claim for reimbursement of costs instead of compensation of damages.

8.8 All claims of buyer based on defects become time-barred one year from the date of delivery, unless longer periods are mandatorily prescribed by statute.

8.9 If a delivery is defective, seller shall, at its own discretion, either remedy the defect or make a new delivery which is free from defects (supplementary performance). Opportunity to make such supplementary performance within a reasonable grace period shall be given to seller in any case. The necessary costs and expenses incurred with the supplementary performance, in particular transportation costs, costs of materials and labor costs, are borne by seller, to the extent such costs and expenses have not increased due to a shipment of the delivery from the place of performance to another place.

8.10 In the event seller’s supplementary performance in form of a replacement delivery (“Ersatzlieferung”) fails or the supplementary performance in form of rectification of defects (“Nachbesserung”) fails after seller’s second attempt, buyer shall be entitled to withdraw from the contract or to reduce the purchase price.

9. Miscellaneous clauses

9.1 Seller reserves the right to improve or modify any of the products without prior notice, provided that these deviations are customary.

9.2 These Standard Terms and Conditions of Sale shall not be assigned or transferred by either party except with the written consent of seller.

9.3 Each party shall be responsible for all its legal, accountancy or other costs and expenses incurred in the performance of its obligation hereunder.

10. Choice of law; place of jurisdiction; final provisions

10.1 The relations between seller and buyer shall be subject exclusively to the law of the Federal Republic of Germany, with the exception of the conflict of law rules. Application of the UN Convention on Contracts for the International Sale of Goods is excluded.

10.2 Place of venue for any dispute in connection with the contractual relationship between seller and buyer shall be the place of business of seller, provided that the contractual partner is a merchant.

10.3 Seller shall have the right to bring a claim before a court at buyer’s principal place of business or at his discretion before any other court being competent according to any national or international law.

10.4 In case of any dispute in connection with the provisions of these Standard Terms and Conditions of Sale only the German version of the Standard Terms and Conditions of Sale shall be decisive and shall be the only version binding between the parties.

10.5 Should any of the provisions of these Standard Terms and Conditions of Sale be invalid or will become so, the remaining provisions shall stay effective.

April 2016

GENERAL TERMS AND CONDITIONS OF PURCHASE OF THE OKE GROUP

1. Preamble

1.1 These standard conditions of purchase or for ordering goods or products of the OKE Group (hereinafter referred to as “OKE”) only apply if they are not modified as the result of an explicit agreement in text form between the parties. These arrangements will also apply if OKE accepts the delivery of goods from the vendor, and if there are any conditions of sale, which have been deemed contradictory, although these do not form the basis of the agreement.

1.2 Any agreement entered into between the vendor and OKE is only legally valid if it has been agreed in text form between the parties. Further additional conditions or contractual terms, which have been introduced by the vendor, shall be considered as rejected, if OKE has not agreed to these additional terms in text form.

1.3 These conditions shall be the basis of all future individual contracts between OKE and the vendor - with simultaneous exclusion of differing General Terms and Conditions.

1.4 OKE orders exclusively based on their order conditions; OKE does not recognise conditions contrary to or deviating from the order conditions or additional conditions of the seller, unless OKE has expressly agreed in text form. The tacit acceptance of deliveries or services from the seller as well as payments by OKE do not imply an agreement with conflicting, deviating or additional terms and conditions of the seller.

1.5 Supply contracts or delivery schedules and other legal transactions entered into between OKE and the vendor, and to the extent where these include additions or amendments are required to be submitted in text form. Any orders and also any aforementioned transactions may be processed by electronic data interchange (EDI), providing that it is standard for this to take place between the parties. In addition, these General Terms and Conditions of Purchase only apply to agreements between merchants.

2. Order and tender documents

2.1 A purchase contract is only deemed to be entered into when OKE has provided a declaration of acceptance in text form following receipt of an offer as part of a binding tender.

2.2 Dimension and weight specifications, quantities, prices, other descriptions and other data, such as those included in catalogues, circulars, advertisements or price lists, are only approximate and are not legally binding for OKE unless they have been explicitly included as part of the agreement. This data, which was forwarded to the vendor before the contract was entered into, remains the exclusive property of OKE and may not be made available to third parties.

2.3 OKE is entitled, within reason, to demand changes to the delivery object in relation to its design and construction. Here, the consequences, in particular any increase or decrease in costs and delivery deadlines must be regulated adequately between the parties. Any changes from the vendor shall require prior approval in text form from OKE.

2.4 The vendor is obliged to provide OKE with a written order confirmation within 10 working days after the order date. Should the vendor fail to comply with this obligation, OKE is entitled to cancel the agreement without providing any reason.

2.5 Should any assets of the vendor form part of insolvency proceedings, or any other judicial or extrajudicial proceedings, OKE is entitled, without giving any reason, to withdraw from the part of the contract which has not been honoured.

3. Purchase price

3.1 The price stated in the order is legally binding and is based on the "Delivered Duty Paid” agreement.

3.2 The purchase price includes the "free delivery”, including packaging and the transfer of transport insurance and statutory value added tax, which will be displayed separately on the invoices.

3.3 Invoices shall be issued by the vendor stating the order and item number immediately after shipping the goods.

3.4 Price reductions shall be notified in text form by the vendor, and a credit will be issued to OKE. Should OKE have already rendered their services, they can demand these be returned, with the vendor being relieved of his/her right to raise any objections.

4. Payment terms

4.1 Payment and delivery shall be processed in such a way as is agreed by the parties on an ad-hoc basis. If no ad-hoc agreement has been made, then payment must be made within 30 days of delivery and upon receipt with a 3% discount within 60 days net. The due date of any early deliveries depends on the delivery date which has actually been agreed.

4.2 All payments by OKE are made with the explicit reservation of a correct delivery undertaken by the vendor, and must be processed on the basis of accurate information being included on the invoice.

4.3 Should OKE make any warranty claims of any kind as the result of a defective delivery, they have the right to withhold payment until any such point where the vendor has honoured his/her obligations in full. Under these circumstances, OKE is entitled to net off these values.

5. Delivery of goods

5.1 Delivery shall be made on the day specified as per the purchase contract or as per the order.

5.2 The vendor is obliged to notify OKE immediately in text form, should a delay in delivery occur.

5.3 The OKE shipping regulations must be observed, in particular, the OKE order and item number must be quoted in all shipping documents, correspondence and invoices.

5.4 Should the vendor deliver before the agreed delivery date, he/she shall be liable for all associated costs, including storage for OKE. If it is assumed that an early delivery may not be possible for OKE, they are entitled to decline acceptance.

5.5 If the vendor delays a delivery, OKE is entitled to demand from the vendor in text form a compensation for the delay and for any additional costs which have incurred (e.g. for transportation, insurance, storage), however this shall not exceed 10% of the total contract value.

5.6 With individual contracts, a contractual penalty in the case of delay in delivery may be agreed between the parties. This applies explicitly to section 7.3. of this agreement.

5.7 Fulfilment and vicarious agents and other individuals from the vendor who are involved in the operation or performance of any contractual item shall be deployed on the premises of OKE, and the applicable provisions of the General Regulations of OKE must be observed. Liability for accidents, which occur involving the above-mentioned individuals on the premises of OKE, is excluded, unless these accidents were not caused by an intentional or grossly negligent breach of duty by the legal representatives of OKE or their vicarious and fulfilment agents.

6. Transfer of risk

6.1 As far as it may result otherwise from the individual supply contracts, the date of the transfer of risk is fixed in accordance with the Incoterms of the International Chamber of Commerce (Incoterms 2000).

6.2 If no agreement on the transfer of risk exists, then essentially the clause "Delivered Duty Paid" (Incoterms 2000) shall apply.

7. Retention of ownership

7.1 Subject to the provisions of Art. 377 of HGB (German Commercial Code), OKE reserves the right to investigate the delivery immediately upon receipt for obvious or visible defects, and only to accept it at this stage. The vendor must pay the costs of any justified complaints and replacement delivery.

7.2 The parameters established during the incoming goods inspection for dimensions, weights and quantities shall be legally binding for both parties. In case of significant discrepancies, OKE must notify the seller within 14 days of the initial inspection.

7.3 OKE may submit claims for a contractual penalty agreed on an ad hoc basis for cases where no explicit claims have been submitted upon accepting the delivery.

8. Warranty and liability disclaimer

8.1 Warranty for material defects

  • The vendor guarantees that the goods he/she supplies are free from defects, are provided with the guaranteed features, and comply with OKE requirements.The vendor remains liable for any defects for a period of two years, starting from the date of delivery. Provided that a defect relates to an item which has been purchased, OKE is entitled to demand either that the vendor remedies the defect or provides a replacement delivery, for which the vendor will bear any costs. Any reduction claims shall be retained for OKE.
  • In urgent situations, OKE is entitled to remedy the defect at the vendor’s expense either itself, or by appointing a third party, and, under these circumstances, will consult the issue with the vendor.
  • All replacement deliveries or repairs also form part of the General Conditions of Purchase Warranty for defects as specified.
  • The vendor is liable without restrictions for any replacement deliveries, repairs and improvement work to the same extent as for the original delivery item in terms of transportation, travel and employment costs.
  • The vendor is obliged to relieve OKE of any claims made against third parties, where these have been made against OKE on the basis of product liability and where this is due to a defect or failure of the product supplied to the third party. This exemption also applies explicitly to any reasonable costs involved in a product recall. This is provided that the vendor can guarantee that an appropriate product liability insurance policy has been taken out.
  • If it has been established in accordance with the procedure referred to in the order that the maximum allowable defect rate has been exceeded, OKE is entitled to claim for the entire order or submit any defect claims at the expense of the seller in order to check the entire shipment for any defects and errors.

8.2 Non-violation of legal regulations
The vendor ensures that the execution of individual purchase contracts will not violate the law, in particular with regards to compliance with laws, regulations or other provisions belonging to any official body.

8.3 Warranty for defects of title
The vendor ensures that all of the objects in relation to purchase contracts are under its full ownership, and that no other rights of third parties (such as liens, other creditor positions from the assignment of receivables or other credit securities, accounts receivables, hire purchase, conditional sale, etc.) are violated.

9. Jurisdiction, choice of law

9.1 This agreement supersedes all previous agreements, which were made verbally or in text form by the parties to these fields of business; any previous agreements shall become invalid from the moment that these General Conditions of Purchase have been signed.

9.2 The rights belonging to this collaboration may not be assigned by any of the parties without prior written consent from the other party.

9.3 Each party shall bear the costs themselves, which are incurred in connection with the execution of this contract.

9.4 Requests, purchase orders, order confirmations, and any other correspondence of OKE with the seller may not be used for promotional purposes. This does not apply if OKE has previously given their consent in text form for the promotion and if the form of advertising has been clearly outlined by the vendor, and approved by OKE in writing.

9.5 The place of performance shall be the place where the delivery item is to be delivered as ordered.

10. Jurisdiction; Choice of law, final provisions

10.1 This agreement is governed by German law. Any dispute arising from the business relationship should ultimately be settled by arbitration, where one or more arbitrators are present, and are acting on the basis of the arbitration rules of the International Chamber of Commerce.

10.2 Instead of calling an arbitral tribunal, OKE is entitled to submit their case to a factually and locally competent court of law.

11. Severability clauses

11.1 If any of these contractual provisions should be or become invalid, the remaining provisions will remain in force.

11.2 If any of these contractual provisions should be or become invalid, the parties shall replace these regulations via a renegotiation process.

April 2017