General Terms and Conditions of Sale and Delivery of Fenne Stahl GmbH

§1 General Information – Scope of Application

1. These terms and conditions of sale apply exclusively. We do not recognize any terms and conditions of the contractual partner that conflict with or deviate from these terms and conditions of sale. Deviating terms and conditions of the contractual partner shall also not apply if they are included in a letter of confirmation from the contractual partner following our order confirmation and we do not object to them. Our silence shall in any case be deemed a rejection.

2. These terms and conditions of sale shall also apply if we fulfill our contractual obligations in the knowledge of terms and conditions of the contractual partner that conflict with or deviate from our terms and conditions of sale.

3. Individual contractual agreements shall take precedence over these General Terms and Conditions.

4. Unless otherwise specified in the contract or these general terms and conditions of sale, declarations of intent shall be made in writing.

5. These Terms and Conditions of Sale apply exclusively to entrepreneurs, legal entities under public law, or special funds under public law.

6. Our Terms and Conditions of Sale also apply to all future transactions with the contractual partner.

7. Our offers are subject to change and non-binding until the contract is concluded. If our order confirmation deviates from the order, our order confirmation shall apply unless the customer has objected to it in writing within 48 hours of it being sent.
Our sales staff are not authorized to make verbal side agreements or give verbal assurances that go beyond the content of the written contract.
In case of doubt, the latest version of Incoterms shall be decisive for the interpretation of trade clauses.

§ 2 Prices

1. The prices stated in our offers plus the applicable statutory value added tax shall be decisive.

2. For deliveries made four weeks after conclusion of the contract, we reserve the right to change prices in the event of an increase in our raw material and material costs of more than 2%. In this case, we shall be entitled to demand a price adjustment in line with the increase in raw material and material costs.

§ 3 Payment and offsetting

1. Unless otherwise agreed or stated in our invoices, the purchase price is due immediately after delivery without discount and must be paid in such a way that we can dispose of the amount on the due date; the buyer shall bear the costs of the payment transaction. The buyer shall only be entitled to a right of retention and a right of set-off to the extent that their counterclaims are undisputed or have been legally established and arise from the same contractual relationship.

2. If the payment deadline is exceeded or in the event of default, we shall charge interest at a rate of 8 percentage points above the base rate, unless higher interest rates have been agreed. We reserve the right to claim further damages for default.

3. The buyer shall be in default at the latest 10 days after our claim becomes due, without the need for a reminder.

4. If, after conclusion of the contract, it becomes apparent that our payment claim is at risk due to the buyer's lack of solvency, or if the buyer defaults on payment or other circumstances arise that indicate a significant deterioration in the buyer's solvency after conclusion of the contract, or if the credit limit accepted by us or the trade credit limit underwritten by a trade credit insurer is reached, we shall be entitled to the rights set out in § 321 BGB (German Civil Code). The same applies to a credit limit agreed between the parties. We shall then also be entitled to demand payment of all claims from the current business relationship with the buyer that are not yet due.

5. An agreed discount requires the complete settlement of all due liabilities of the buyer at the time of the discount.

§ 4 Delivery dates and delivery periods

1. Our delivery obligation is subject to correct and timely delivery to us, unless the incorrect or delayed delivery to us is our fault.

2. Information on delivery times is approximate. Delivery periods begin on the date of the order confirmation, but at the earliest when all details of the order have been clarified and all obligations of the buyer have been fulfilled (e.g., provision of all official certificates, ordering of letters of credit, payment of a deposit, etc.). The date of dispatch from the factory/warehouse is decisive for compliance with delivery periods and delivery dates.

3. If the goods are sent to the buyer, the risk of accidental loss or accidental deterioration of the goods shall pass to the buyer upon delivery to the supplier's shipping agent, but no later than upon leaving the factory or warehouse, regardless of whether the shipment is made from the place of performance or who bears the freight costs. If the goods are ready for shipment and acceptance or shipment is delayed for reasons for which the supplier is not responsible, the risk shall pass to the customer upon receipt of the notification of readiness for shipment.

4. We are entitled to make partial deliveries to a reasonable extent.

5. In the case of call-off orders, goods reported as ready for shipment must be called off immediately.

6. Otherwise, we shall be entitled, after issuing a reminder, to ship them at the buyer's expense and risk at our discretion or to store them at the buyer's expense and charge for this. In the case of contracts with continuous delivery, call-offs and assortment allocation must be given to us for approximately equal monthly quantities, otherwise we shall be entitled to make the determinations ourselves at our reasonable discretion. If the individual call-offs exceed the contractual quantity in total, we shall be entitled, but not obliged, to make additional deliveries.
We may charge for the additional quantity at the prices valid at the time of call-off or delivery.

7. Delivery periods shall commence on the date of our order confirmation, but not before all details of the order have been clarified; the same shall apply to delivery dates. Appointments must be confirmed in writing.

8. If the buyer fails to fulfill contractual obligations—including effective or ancillary obligations—in a timely manner, we shall be entitled to postpone our delivery periods and dates appropriately (without prejudice to our rights arising from the buyer's default).

9. We shall determine the forwarding agent or carrier. If the loading or transport of the goods is delayed for a reason for which the buyer is responsible, we shall be entitled, at the buyer's expense and risk, to store the goods at our reasonable discretion, to take measures deemed appropriate to preserve the goods, and to invoice the goods as delivered. The same shall apply if goods reported as ready for shipment are not called off within four days. The statutory provisions on default of acceptance shall remain unaffected.

10. In cases of force majeure and other impediments to performance that are unforeseeable and not attributable to us—including labor disputes, shortages of raw materials, operational disruptions, transport obstacles, and official measures, including those affecting our suppliers—we shall be entitled to postpone delivery for the duration of the impediment to performance. We shall inform the contractual partner immediately of the unavailability or late availability of the delivery item and, in the event of withdrawal, shall immediately refund the contractual partner's consideration.

11. If we are in default with a delivery, the contractual partner must set a reasonable grace period in writing. If this period expires without result, the contractual partner may withdraw from the contract for those quantities and services that were not reported as ready for shipment by the end of the grace period. Only if
these partial quantities are meaningless for the contractual partner can withdrawal from the entire contract be considered.

§ 5 Retention of title

1. All delivered goods remain our property (reserved goods) until all claims, in particular the respective balance claims, to which we are entitled within the scope of the business relationship (balance reservation) have been fulfilled. This also applies to future and conditional claims, e.g. from acceptor bills of exchange, and also if payments are made on specially designated claims.
This balance reservation shall expire definitively upon settlement of all claims still outstanding at the time of payment and covered by this balance reservation.

2. The treatment and processing of the goods subject to retention of title shall be carried out for us as the manufacturer within the meaning of § 950 BGB (German Civil Code) without placing us under any obligation. The processed goods shall be deemed reserved goods within the meaning of No. 1. If the buyer processes, combines, or mixes the reserved goods with other goods, we shall be entitled to co-ownership of the new item in proportion to the invoice value of the reserved goods to the invoice value of the other goods used. If our ownership expires due to combination or mixing, the buyer hereby transfers to us the ownership rights to which he is entitled in the new stock or item to the extent of the invoice value of the goods subject to retention of title and shall store them for us free of charge. Our co-ownership rights shall be deemed goods subject to retention of title within the meaning of No. 1.

3. The buyer may only sell the goods subject to retention of title in the ordinary course of business under his normal terms and conditions and as long as he is not in default, provided that the claims from the resale are transferred to us in accordance with Nos. 4 to 6. He is not entitled to dispose of the goods subject to retention of title in any other way.

4. The claims arising from the resale of the goods subject to retention of title are hereby assigned to us together with all securities acquired by the buyer for the claim. They serve as security to the same extent as the goods subject to retention of title. If the goods subject to retention of title are sold by the buyer together with other goods not sold by us, the claim from the resale shall be assigned to us in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods sold. In the case of the sale of goods in which we have co-ownership shares in accordance with No. 2, a share corresponding to our co-ownership share shall be assigned to us.

5. The buyer is entitled to collect claims from the resale. This collection authorization shall expire in the event of our revocation, but at the latest in the event of default in payment, non-honoring of a bill of exchange, or application for the opening of insolvency proceedings. We shall only exercise our right of revocation if, after conclusion of the contract, it becomes apparent that our claim for payment from this or other contracts with the buyer is at risk due to the buyer's lack of solvency. At our request, the buyer is obliged to immediately inform its customers of the assignment to us and to provide us with the documents necessary for collection.

6. The buyer must inform us immediately of any seizure or other impairments by third parties. The buyer shall bear all costs incurred in removing the seizure or returning the goods subject to retention of title, unless these are reimbursed by third parties.

7. If the buyer defaults on payment or fails to honor a bill of exchange when due, we shall be entitled to take back the goods subject to retention of title and, if necessary, to enter the buyer's premises for this purpose. The same shall apply if, after conclusion of the contract, it becomes apparent that our claim for payment under this contract or other contracts with the buyer is at risk due to the buyer's inability to pay. Taking back the goods does not constitute a withdrawal from the contract. The provisions of the Insolvency Code
remain unaffected.

8. If the invoice value of the existing securities exceeds the secured claims, including ancillary claims (interest, costs, etc.), by more than 50%, we shall be obliged, at the buyer's request, to release securities of our choice to this extent.

§ 6 Qualities, dimensions, and weights

1. Grades and dimensions are determined in accordance with the DIN/EN standards and material sheets applicable at the time of conclusion of the contract, or, in the absence thereof, in accordance with customary commercial practice. References to standards, material sheets or factory test certificates, as well as information on grades, dimensions, weights and usability, do not constitute representations or guarantees, nor do declarations of conformity, manufacturer's declarations and corresponding marks such as CE and GS.

2. The weights determined by us or our suppliers shall be decisive. Proof of weight shall be provided by presenting the weighing slip. To the extent permitted by law, weights may be determined without weighing in accordance with standards. The usual surcharges and discounts (commercial weights) shall remain unaffected.
The quantities, bundle numbers, etc. stated in the dispatch note are not binding for goods invoiced by weight. Unless individual weighing is customary, the total weight of the shipment shall apply. Differences from the calculated individual weights shall be distributed proportionally among them.

§ 7 Acceptance

1. If acceptance has been agreed, it can only take place at the delivery plant or our warehouse immediately after notification of readiness for acceptance. The personal acceptance costs shall be borne by the buyer; the material acceptance costs shall be charged to the buyer according to our price list or the price list of the delivery plant.

2. If, through no fault of our own, acceptance does not take place, does not take place on time, or is not complete, we shall be entitled to ship the goods without acceptance or to store them at the buyer's expense and risk and to charge the buyer for them.

§ 8 Shipping, transfer of risk, packaging, and partial delivery

1. We shall determine the shipping route and means of transport as well as the forwarding agent or carrier.

2. Goods reported as ready for shipment in accordance with the contract must be called off immediately, otherwise we shall be entitled, after issuing a reminder, to ship them at the buyer's expense and risk at our discretion or to store them at our own discretion and to invoice them immediately.

3. If, through no fault of our own, transport by the intended route or to the intended location within the intended time becomes impossible or significantly more difficult, we shall be entitled to deliver by another route or to another location; the additional costs incurred shall be borne by the buyer. The buyer shall be given the opportunity to comment in advance.

4. Upon handover of the goods to a forwarding agent or carrier, but no later than upon leaving the warehouse or the delivery plant, the risk, including that of seizure of the goods, shall pass to the buyer for all transactions, including carriage paid and free delivery. We shall only provide insurance on the instructions and at the expense of the buyer. The obligation and costs of unloading shall be borne by the buyer.

5. The goods are delivered unpacked and without protection against rust. If customary in the trade, we deliver packed. We provide packaging, protective and/or transport aids according to our experience at the buyer's expense. They are taken back at our warehouse. We do not bear the buyer's costs for
return transport or for disposing of the packaging themselves.

6. We are entitled to make partial deliveries to a reasonable extent. Excess and short deliveries of the agreed quantity that are customary in the industry are permissible.

§ 9 Call orders, continuous deliveries

1. In the case of contracts with continuous delivery, call-offs and assortment classification must be submitted to us for approximately equal monthly quantities; otherwise we shall be entitled to make the determinations ourselves at our reasonable discretion.

2. If the individual call-offs exceed the contractual quantity in total, we shall be entitled, but not obliged, to deliver the excess quantity. We may charge for the excess quantity at the prices valid at the time of the call-off or delivery.

§ 10 Duty to inform Contractual partners, right of termination and withdrawal

1. We may refuse to perform our obligations if, after conclusion of the contract, it becomes apparent that our claim to consideration is jeopardized by the contractual partner's inability to perform. The right to refuse performance shall not apply if consideration is provided or security is given for it.

2. We are entitled to set a reasonable deadline within which the contractual partner must, at its discretion, either provide the consideration or provide security for it in return for the performance. If the deadline expires without success, we may withdraw from the contract.

3. A deadline pursuant to paragraph 2 is not required if the contractual partner has made a statutory declaration or if insolvency proceedings have been opened against its assets or if insolvency proceedings have been dismissed for lack of assets.

4. The contractual partner is obliged to inform us immediately if it has made a statutory declaration or if an application has been filed for the opening of insolvency proceedings against its assets.

5. Terminations of the contract must be made in writing.

6. If the contractual partner exercises its right of termination within the framework of a contract for work and services without us being responsible for this, we shall be entitled to a lump-sum claim amounting to at least 10% of the net order value, unless the contractual partner proves that the claim has not arisen
or is lower. We reserve the right to assert further claims for damages.

§ 11 Defects, liability for defects

1. Insofar as quality agreements have been made between the contracting parties, deviations due to the relevant technical standards (e.g., DIN standards) are permissible and therefore do not constitute defects.

2. Claims for defects shall not exist in the case of only insignificant deviations from the agreed quality, only insignificant impairment of usability, natural wear and tear or damage occurring after the transfer of risk as a result of incorrect or negligent handling, transport damage, excessive strain on unsuitable operating materials, or which arise due to special external influences that are not assumed under the contract. If changes or repair work are carried out by the customer or third parties, there shall also be no claims for defects for these or the resulting consequences.

3. A necessary prerequisite for claims for defects is that the obligation to inspect and give notice of defects pursuant to § 377 HGB (German Commercial Code) has been duly fulfilled. The notification of defects must be made in writing.

4. The contractual partner may not refuse to accept deliveries due to minor defects.

5. If the contractual partner asserts a defect, we shall be entitled to check whether a defect actually exists. In this respect, the contractual partner shall be obliged to make the rejected goods or samples thereof available immediately upon request. If the contractual partner refuses to do so, all rights due to the material defect shall lapse.

6. If there is a defect, we shall be entitled, at our discretion, to subsequent performance in the form of rectification of the defect or delivery/manufacture of a new defect-free item. If the subsequent performance fails or is refused, the contractual partner may withdraw from the contract or reduce the purchase price after a reasonable period of time has elapsed without success. If the defect is not significant or if the goods have already been sold, processed, or redesigned, the contractual partner shall only be entitled to a reduction in price.

7. After the buyer has carried out an agreed acceptance of the goods, complaints about defects that were detectable during the agreed type of acceptance are excluded. If the contractual partner was unaware of a defect as a result of negligence, they can only assert rights due to the defect if we have fraudulently concealed the defect or have assumed a guarantee for the quality of the item.

8. The place of performance for subsequent performance is our place of business. In the case of goods that have been sold as downgraded material, the contractual partner shall have no rights arising from material defects with regard to the stated reasons for downgrading and such defects that he would normally have to expect.
In the case of the sale of IIa goods, our liability for material defects is excluded.

9. The warranty period for defects in new items is 12 months and begins with the transfer of risk, but no later than upon handover to the transport person. This does not apply if the law mandatorily prescribes a longer liability period or in cases of intent or fraudulent concealment of the defect.

10. Any assurances made by us only constitute a guarantee if they have been expressly designated as such. If this is not the case, they constitute an agreement on quality.

11. Transport damage must be reported immediately in writing, with the involvement of the carrier responsible for the delivery.

12. If the contractual partner has transported the subject matter of the contract or had it transported, we shall not be obliged to remedy any transport damage and/or subsequent defects, unless the defect is not due to transport.

§ 12 General limitation of liability, statute of limitations

1. We shall only be liable for breaches of contractual and non-contractual obligations, in particular for impossibility, delay, culpa in contrahendo, and tort, including for our executive employees and other vicarious agents, in cases of intent and gross negligence, limited to the damage typical for the contract and foreseeable at the time of conclusion of the contract. Otherwise, our liability, including for defects and consequential damages, is excluded.

2. These limitations shall not apply in the event of culpable breach of essential contractual obligations, insofar as the achievement of the purpose of the contract is jeopardized, in the event of culpably caused damage to life, limb, and health, and also if and to the extent that we have assumed a guarantee for the quality of the item sold, as well as in cases of mandatory liability under the Product Liability Act. The rules on the burden of proof remain unaffected by this.

3. Unless otherwise agreed, contractual claims arising against us on the part of the buyer on the occasion of and in connection with the delivery of the goods shall become time-barred one year after delivery of the goods. This period shall also apply to goods which, in accordance with their normal use, are used for a building and have caused its defectiveness, unless this use has been agreed in writing. This shall not affect our liability for intentional and grossly negligent breaches of duty, culpably caused damage to life, limb, and health, and the limitation period for recourse claims pursuant to §§ 478, 479 BGB (German Civil Code).

§ 13 Prohibition of assignment

1. The contractual partner is not entitled to assign claims against us to third parties without our written consent.

§ 14 Place of performance, place of jurisdiction, and applicable law

1. The place of jurisdiction is our registered office in 46282 Dorsten, Germany, for all claims arising from or in connection with this contract. However, we are also entitled to sue the contractual partner at its registered office.
Arbitration agreements require our express written consent to be effective.

2. The place of performance is our registered office in 46282 Dorsten, Germany.

3. The legal relationships between the contracting parties shall be governed exclusively by German law, excluding international private law and the UN Convention on Contracts for the International Sale of Goods.

§ 15 Final provisions

1. Should any of the above provisions be or become invalid, this shall not affect the validity of the remaining provisions. The invalid provisions shall be replaced by provisions that come closest to the economic purpose of the contract while safeguarding the interests of both parties. All our previous terms and conditions of sale and delivery are hereby superseded.

As of: February 14, 2017