General Conditions of Sale and Delivery

General Conditions of Sale and Delivery
of TAIYO GmbH
Mittelstr. 36
58332 Schwelm
Germany

I. Scope and validity

1.
These General Conditions of Sale and Delivery (“GCSD”) apply to all contracts and contract negotiations of TAIYO GmbH (“the Seller”), insofar as the respective contract concerns the manufacturing and/or sale and/or delivery of goods by TAIYO GmbH.

2.
These GCSD also apply only to such a contract partner of the Seller, who is an entrepreneur within the meaning of §§ 310,14 BGB (“the Purchaser”). Accordingly, the entrepreneur is a natural or legal person or a legal partnership which acts based on the conclusion of a legal transaction in the exercise of its commercial or independent professional activity.

3.
Contracts, contract negotiations, supplies or other services by the Seller are performed exclusively on the basis of these conditions. They shall also apply in particular, if the Seller performs the delivery/service whilst being aware of the alternate terms of the contract partner. General conditions of the Purchaser will apply, only if the Seller confirms them in writing. If special terms are agreed in writing for certain orders, these GCSD will be subordinate and supplementary.

4.
As far as a written form is envisaged in the present GCSD, it is also to be ensured that relevant statements are transmitted by fax or email. A written agreement is also considered applicable when the Seller and the Purchaser respectively provide content-wise explanations in written form.

II. Offer and conclusion of contract

1.
The offers of the Seller are non-binding. A contract between the Seller and the Purchaser will be considered as concluded, if and only if the Seller confirms the acceptance of the order to the Purchaser in writing. The silence of the Seller with reference to an order of the Purchaser does not have any explanatory power and cannot in particular justify the conclusion of contract. Commercial confirmation letter of the Purchaser, even without the objection of the Seller, does not validate a contract containing a content different from the offer, the order confirmation or other written statements of the Seller.

2.
The content of contract arises only from the order confirmation and these GCSD. If the order confirmation of the Seller differs from the order of the Purchaser, the contract with the content mentioned in the order confirmation will become effective, unless the Purchaser objects explicitly and in writing to the Seller within three working days from the receipt of the order confirmation.

3.
Other contents, particularly those from brochures used by the Seller or other sales documents, shall be subject to the contract, only if they are explicitly listed in the order confirmation.

III. Prices and payment

1.
The Seller’s prices are fixed in euros and the Purchaser has to make his payments in euro, unless otherwise agreed. All indicated prices are net prices and are, unless otherwise agreed, ex works exclusive of the statutory value added tax.

2.
In the case of contracts which have to be executed later than four months of the conclusion of contract by the Seller or can be executed only later than four months of the conclusion of contract due to reasons attributable to the Purchaser, if the purchase prices of the Seller increase between the conclusion of contract and the execution of the order, the Seller is entitled to demand an increased price proportionate to a percentage of the affected purchase price corresponding to the agreed price. In the case of relationships with continuing obligations, the Seller has this right, even if the period between the conclusion of contract and its execution is shorter than the four months.

3.
Discount will only be granted to the Purchaser, if this is explicitly agreed in writing. However, the Seller has also the right to refuse the discount after conclusion of the contract, even if only one previous bill—except bills, which preclude the legitimate objections of the Purchaser—has not been settled by the Purchaser. For discounted bills, the indicated net bill amounts after deduction, such as discounts, freight, return merchandise credits, etc. are final.

4.
The Seller issues to the Purchaser a single bill or multiple bills for his services. The Seller’s bills become due without any deduction in the payment within 30 days after the bill date, but at the latest after receipt of the supplies or services, unless otherwise explicitly agreed.

5.
The Purchaser’s payments have to be made to the Seller’s business account mentioned in the respective bill. If multiple business accounts are indicated, then payment can be made in any of the accounts mentioned. Cheques and bills of exchange are not accepted by the Seller as settlement or for the sake of settlement.

6.
From the due date of the bill amounts, interest at a rate of 9% above the respective base interest rate is chargeable to the Seller without further reminder. Any further claims, in particular due to delay of the Purchaser, remain unaffected.

7.
Charging with counter-claims which are disputed by the Seller and/or not legally established is not permitted against payment claims of the Seller. The assertion of a right of retention due to claims that are not based on the same contractual relationship, is excluded, if these claims are not recognised by the Seller or not legally established. Based on a notification of defect, the Purchaser may withhold payments, only if there can be no doubt on the notification of defect, and in addition only to the extent that is in a reasonable proportion to the defects detected.

8.
If one of the events mentioned below occurs or if such an event that was already present at the time of conclusion of the contract comes to be known only after conclusion of the contract, then the Seller is entitled to demand advance payment to the extent of the agreed price from the Purchaser as well as to revoke the agreed or granted payment terms with the Seller or to return the current bill of exchange and to demand immediate payment. This is applicable in the following events:

a)
The Purchaser applies for starting judicial or out-of-court insolvency or composition proceedings, or judicial or out-of-court insolvency or composition proceedings are started against the assets of the Purchaser, or the starting of such a process is rejected due to lack of assets;

b)
There is a written credit statement of a Bank, which reveals the credit unworthiness of the Purchaser or a significant deterioration in his financial situation.

If the Purchaser does not fulfil the legitimate request of the Seller for advance payment within the reasonable deadline set by the Seller, although the Seller has declared to him that he would refuse to accept additional services from him after the deadline, then the Seller is entitled to withdraw from the contract or to demand compensation for damages instead of the service, but this will apply only to the part of the contract not yet executed by him.

IV. Shipping/delivery and transfer of risk

1.
The Seller will ship the goods to the shipping and delivery address. Unless otherwise indicated explicitly by the Purchaser to the Seller, the shipping and delivery address is the address or one of the addresses, which is specified in the written order of the Purchaser.

2.
Shipping material and shipping method can be determined by the Seller at his discretion, unless otherwise explicitly agreed with the Purchaser. Applicable shipping and packaging costs, such as miscellaneous costs incurred under public law or according to civil law for transportation, import and export of the goods, are to be borne by the Purchaser, unless it concerns costs that are attributable to grossly negligent conduct of the Seller.

3.
In each case, the risk passes from the Seller to the Purchaser with the dispatch of the goods, independently of the place of shipping, and even if carriage-free delivery or free delivery to warehouse has been agreed exceptionally and/or the Seller has to still provide further services (e.g., assembly, installation, commissioning) at the location of the Purchaser in addition to the delivery. However, this does not apply in cases where the Seller transports goods through his own employees or a fault of his employees is the cause of destruction or damage of goods.

4.
The Seller will insure each shipment against transport damages in favour of the Purchaser. The Purchaser has to bear the costs for this. Only after an explicit agreement with the Purchaser and at his own expense, the delivery item will be insured by the Seller against any other insurable risk desired by the Purchaser. Cases of transport damage are to be notified to the Seller without delay. Further, the receiver shall ensure upon delivery that the appropriate claims and reservations about the freight forwarders are reported.

5.
The Seller is entitled, but not obliged, to make partial deliveries and to charge separately, if the partial deliveries are reasonable for the Purchaser and the Seller has legitimate reasons for such partial deliveries. Other rules will be binding for the Seller, only if agreed explicitly and in writing.

V. Delivery times, delivery schedules and delays

1.
Delivery times and/or delivery schedules are only binding for the Seller, only if agreed explicitly and in writing.

2.
A delivery schedule determined according to the contract duration begins at the end of the day, where all details of the content of contract is achieved, at the earliest with the acceptance of the order by the Seller, but not before producing all documents, approvals, releases that are to be provided by the Purchaser, and not before the receipt of any deposit to be paid by the Purchaser.

3.
If the agreed delivery date is after more than four months of conclusion of the contract and unforeseen additional costs relating to the goods which do not fall within its area of responsibility arise to the Seller after the expiry of the four months, then the Seller will be entitled to charge the increased costs from the Purchaser by appropriately increasing the selling price. The Seller has to communicate this to the Purchaser in writing and with justification.

4.
If an agreed delivery or service date is exceeded by the Seller, then the Purchaser has to set a reasonable grace period of at least three weeks, due to the pending deliveries of the Seller, unless previously agreed explicitly, that it is an absolute fixed-time deal. After unsuccessful expiry of this period, the Purchaser will have legal rights, unless otherwise provided for in these GCSD.

5.
The delay in delivery can be attributed to the Seller and can justify compensation claims of the Purchaser, only if it was caused by the Seller intentionally or through gross negligence, or if it concerns damages resulting from risk to life, body, health or the freedom of our contracting partner. In this respect, no delays can be attributed to the Seller, which are caused by force majeure or other events that are beyond the sphere of influence of the Seller. The latter is for example the case, when the Seller, in turn, depends on goods or services of a third party for manufacturing or delivery of the contractual goods and such third party does not supply the goods or services in time for no fault of the Seller. The right of the Purchaser to resolve delays due to the Seller in relation to the execution of the contract remains unaffected, as far as it is required by law.

6.
If the shipment is delayed at the request of the Purchaser or for other reasons due to him, or the Purchaser is in default of acceptance, then the Seller will store the goods at the expense and risk of the Purchaser. In this case, with the indication of readiness for dispatch by the Seller, the risk passes to the Purchaser. The Seller is not obliged to insure the stored goods.

7.
If the Purchaser wholly or partly delays the acceptance of the services of the Seller, then after unsuccessful expiry of a reasonable grace period set by him, the Seller is entitled to warn, that he would refuse to receive the services to be provided to him by the Purchaser in the event of the expiry of the period, and either withdraw from the contract or demand compensation for damages instead of the service, but this will apply only to the part of the contract not yet executed by the Seller. In addition, the legal rights of the Seller in case of default of acceptance of the Purchaser remain unaffected.

VI. Quality and defects of the sold goods

1.
Information relating to the properties or intended purposes of the goods, which the Seller has provided to the Purchaser through sales catalogues, price lists and other information materials, never implies a quality agreement, let alone a warranty of the Seller. Such agreements must be made between the contracting parties explicitly and in writing.

2.
Images, dimensions, weights, information on mode of action and ingredients and their proportions, as well as other quality and/or shelf life data, which are contained in catalogues, prospectuses, price lists, descriptions, drawings or other documents of the Seller are merely indicative of information typically supplied in the sector and are based on regular research work and technical experience in use. The Seller provides such information to the best of his knowledge, subject to changes and advancements, and without any liability. Samples and patterns provide an approximate indication of quality, dimensions and other properties.

3.
The Purchaser is obliged to check the goods for transport damages or other defects when receiving them. If such defects exist, he has to document them without delay, and notify to the Seller in writing and with photographs. If the Purchaser does not fulfil this obligation, then the goods shall be deemed as approved. For defects that were not identifiable at the time of delivery, same rule applies with the proviso that any defect must be immediately notified to the Seller after discovery of the defect. § 377 HGB also applies.

4.
The notification of defects does not immediately justify the assertion of a right regarding defect, unless the Purchaser illustrates it explicitly. Otherwise, a separate and written assertion of specific right regarding defect is required.

5.
The Purchaser is obliged to provide to the Seller upon request a sufficient quantity of items/products that are considered defective by him for review by the Seller or a third party for the purpose of investigations and observations related to the approval of claims due to defects of an item, in particular a product, or a work, and for this the Seller shall bear the cost of sending.

6.
The rights of the Purchaser on account of defects of the sold goods are determined according to legal regulations, as well as the following requirements, unless otherwise established in these GCSD:

a)
The Purchaser has to grant the Seller an appropriate period of at least four weeks for re-execution, while he may, at his own discretion give a reasonable period of less than four weeks to the Seller in individual cases, provided that a minimum period of four weeks is unreasonable for him for re-execution. The period of the re-execution does not in any case commence before the time, when the Purchaser returns the defective goods to the Seller, in which case the Seller bears the costs of return.

b)
If only a part of the goods delivered by the Seller is defective, then the Purchaser’s right to demand the cancellation of contract or compensation for damages instead of service is limited to the defective part of the delivery, unless this limitation is impossible or is unreasonable for the Purchaser.

c)
Compensation claims of the Purchaser due to defects in delivery or performance are limited to the extent provided for in paragraph VII below.

d)
The Purchaser is not entitled to warranty rights, if the defect is attributable to Purchaser’s own fault. This may be the case, for example, while storing the sold goods without complying with the storage instructions or using without complying with the instructions of the Seller regarding use.

7.
If a notification of defect by the Purchaser proves unjustified, then he has to compensate the Seller for all necessary and reasonable expenses caused by the unjustified notification of defect.

8.
The warranty period for purchase contracts is two years from the date of transfer of risk.

VII. Damage claims of the Purchaser

In all cases, in which this clause is referenced in these GCSD, and unless otherwise regulated in these GCSD, it applies to any damage claims of the Purchaser against the Seller, that these are excluded, unless

a)
they are based on an intentional or gross negligence of duty of the Seller, any of his legal representatives or vicarious agents;

b)
it is the violation of essential contractual obligations. In this case, the Seller will also be liable for minor fault, but limited to the reasonably foreseeable damage typical of contract;

c)
it concerns damages resulting from risk to life, body, health or the freedom of our contracting partner, which is based on a culpable breach of duty by the Seller;

d)
it concerns damage claims based on product liability law;

e)
they are based on the absence of warranted properties and qualities, if and insofar as the warranty had the purpose to protect the Purchaser from damages that have not occurred on the goods supplied or the service itself.

VIII. Reservation of ownership and further processing of the goods

1.
The goods ordered by the Purchaser will remain the property of the Seller until all claims arising from the business relationship are paid in full. The itemisation of individual claims in a current bill as well as the account balancing and its acceptance does not affect the reservation of ownership.

2.
The Purchaser is entitled to dispose of the reserved goods in the regular course of business as well as to process them further and to combine or mix with other items within the meaning of §§ 946-950 BGB. In these cases, the following shall apply:

a)
While combining, mixing or processing the reserved goods in accordance with the proviso §§ 946-950 BGB, the Seller acquires pro rata co-ownership of the new goods and also in the amount, which corresponds to the value proportion of the goods and the combined, mixed or processed items. § 947 para. 2 BGB remains unaffected, provided that the goods of the Seller constitutes the main point;

b)
a resale and transfer of ownership of the goods or of the item manufactured according to the preceding letter a), the Purchaser is obliged to declare the transfer of claims from the resale to the Seller in writing within a period of seven days, as far as these are transferable. Now the Seller already accepts this transfer. An additional and separate declaration of acceptance is no longer required. The transfer is carried out with priority over the rest of the matters.

3.
Other contractual or real availability of the reserved goods are permitted only with the explicit written consent of the Seller.

4.
In the case of the preceding paragraph 2 b), the Seller already authorises the Purchaser to collect the transferred claims subject to revocation. The Purchaser has to immediately transfer the collected amounts to the Seller, as far and as soon as the respective claims are due. if these claims are not due, the collected amounts should be recorded separately by the Purchaser. The Seller’s authority to collect the claim himself shall remain unaffected.

5.
With default of payment, application or commencement of insolvency proceedings, the judicial or out-of-court composition proceedings annul the rights of the Purchaser referred to in this paragraph VIII with regard to the reserved goods and the empowerment to the collection of transferred claims without the revocation by the Seller.

6.
In the case of paragraph 2 b) the Seller undertakes to release the claims transferred to him on the Purchaser’s request, insofar as the realisable value of the securities exceeds the claims due to the Seller by more than 20 percent. The selection of the securities to be released is the prerogative of the Seller.

7.
The Purchaser has a claim to re-transfer of property against the Seller in the case of paragraph 2 a) and a claim to re-transfer of the claims in the case of paragraph 2 b), if and as soon as the Purchaser has completely fulfilled his payment obligation arising from the entire business relationship.

8.
In case of seizures or other interventions of third parties on the reserved goods, the Purchaser has to indicate the reserved property and notify the Seller immediately, so that the Seller can institute proceedings pursuant to § 771 ZPO. If the Purchaser does not fulfil this obligation, he shall be liable for the resulting damages.

IX. Additional rights and obligations of the Purchaser

1.
The Purchaser may transfer the rights arising from the contractual relationship with the Seller to third parties, only if the Seller has given his written consent. The Seller has to indicate an intention of transfer to the Purchaser immediately in writing. It relates to any transfer, even though the Seller has not agreed to this, the absence of approval or refused approval is equivalent to an exclusion of transfer agreed between the contracting parties. § 354a HGB shall remain unaffected.

2.
A set-off or the assertion of a right of retention is permitted for the Purchaser, even in cases other than that mentioned in III. para. 7 of these GCSD, only with undisputed or legally established counter-claims. The counter-claim will be undisputed, only if there is consensus between the contract partners on its reason and its extent. A right of retention arising from earlier or other transactions of the current business relationship cannot be asserted.

3.
Unless otherwise agreed in writing with the Purchaser in the individual case, he is responsible for compliance with statutory and official regulations on import, transportation, storage, use, further processing, resale and export of the goods belonging to the Seller, as much and as soon as the Purchaser is in possession of the goods. The Purchaser is especially obliged not to use the goods for prohibited or illegal purposes, and, to the extent legally required, to register and/or report according to the respective national regulations, as far as this has not been done already by the Seller.

X. Documents, property rights and confidentiality

1.
Regarding designs, samples, files and other documents or data, which the Purchaser has received directly or indirectly from the Seller or, on his initiative, from third parties, the unrestricted intellectual property rights and copyrights belong to the Seller.

2.
If the goods have to be produced based on drawings, samples and other information of the Purchaser, the Purchaser commits that this causes no type of infringement of rights of third parties, in particular patents, registered design, other intellectual property rights and copyrights. The Purchaser indemnifies the Seller against claims of third parties arising from a possible infringement of such rights. In addition, the Purchaser shall bear all costs incurred by the Seller when third parties assert the infringement of such rights and he shall defend himself against this. The same applies to the use of samples, designs, artworks, etc. created by the Seller or handed over by the Purchaser.

3.
If in the course of development work by the Seller results, solutions or techniques arise, which are subject to property rights in any way, then the Seller alone is holder of the resulting ownership, copyright and rights of use, and it remains reserved to him to make the appropriate applications for property rights in his own name and on behalf him.

4.
The Purchaser may take or let third parties take no action, which could jeopardise the rights of intellectual property, which the Seller uses in connection with the goods. In particular, trade marks or other distinguishing features, which are printed or affixed on goods of the Seller shall neither be hidden nor altered or removed by the Purchaser.

5.
In the event when the Purchaser further processes the goods, in particular manufactures new products with them, he shall ensure on behalf of the Seller, that these new products do not infringe industrial property rights of third parties. X para. 2 applies in this respect.

XI. Final provisions

1.
These GCSD and the contracts applicable to them are subject to the rules and regulations of the German Law. If these GCSD have no derogations, the statutory provisions shall apply. The rules and regulations of the United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.

2.
The provisions of these General Conditions of Sale and Delivery can be derogated within the framework of contracts, to which they apply, only if the parties have agreed to this explicitly, mutually and in writing.

3.
The court of jurisdiction shall be, as far as permitted by law, the competent court for the registered office of the Seller or, at the option of the Seller, the general court of jurisdiction of the Purchaser. Unless otherwise stated in the order confirmation, the registered office of the Seller applies as the place of performance.

4.
Even in the case of ineffectiveness or impracticability of individual parts, these conditions shall remain effective for other parts.

Version: 07/2018