These Standard Delivery Terms and Conditions of the WAFO Klaus Wagner GmbH, Moselstr.9, 66955 Pirmasens, Gemany (WAFO) shall exclusively apply for all deliveries of WAFO to the Principal (Principal), if not altered by explicit agreement accepted in writing by both parties, WAFO and the Principal.

The offer, order acknowledgment, order acceptance of sale or manufacturing of any products and works covered herein is conditioned upon the terms contained in this instrument. Any conditional or different terms proposed by the Principal are objected to and will not be binding upon WAFO unless assented in writing by WAFO.

These conditions shall govern any present and future individual contract relating to performances, in particular for purchasing, work and services and supply of materials between WAFO and the Principal to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Principal.

Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document of information issued by WAFO shall be subject to correction. WAFO shall only be held liable for damages that might typically occur, if no intentional mistake is given. Furthermore, the liability for injuries to persons remains unlimited.

The provisions of these Standard Term and Conditions extend to standard contract conditions which are used in a contract with a merchant or a in the course of business only (§ 14 BGB) . They also apply to business with legal entities under public law, or separate estates under public law.

WAFO’s quotations are subject to change. The goods are subject to being unsold.

No order submitted by the Principal shall be deemed to be accepted by WAFO unless and until confirmed in writing by WAFO or WAFO’s representative within 21 days after submittal or by shipping the ordered goods to the Principal.

The quantity, quality and description of and any specification for the goods shall be those set out in WAFO’s quotation (if accepted by the Principal) or the Principal’s order (if accepted by WAFO). Any such specification, sales literature, quotation, price list etc. shall be strictly confidential and must not be made available to third parties.

The Principal shall be responsible for WAFO for ensuring the accuracy of the terms of any order submitted by the Principal, and for giving WAFO any necessary information relating the goods within a sufficient time to enable WAFO to perform the contract in accordance with its terms.

If the goods are to be manufactured or any process is to applied to the goods by WAFO in accordance with a specification submitted by the Principal, the Principal shall indemnify WAFO against all loss, damages, costs and expenses awarded against or incurred by WAFO in connection with or paid or agreed to be paid by WAFO in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual rights of any other person which results from WAFO’s use of the Principal’s specification.

WAFO reserves the right to make any changes in the specification of the goods which are required by law to conform with any application and which do not materially affect their quality and/or performance.

The compensation shall be WAFO’s quoted price or, where no price has been quoted, the price listed in WAFO’s published price list current at the date of acceptance of the order. By publishing a new price list, the former price list gets void.

WAFO reserves the right, by giving notice to the Principal at any time before delivery, to increase the compensation to reflect increase in the cost to WAFO which is due to any factor beyond the control of WAFO (such as foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of materials or other costs of manufacture) or any change in delivery dates.

Except as otherwise stated under the terms of any quotation or in any price list of WAFO, and unless otherwise agreed in writing between the Principal and WAFO, all compensations are given by WAFO on an ex works basis, and where WAFO agrees to deliver the goods otherwise than at WAFO’s premises, the Principal shall be liable to pay WAFO’s charges for transport, clearing, packaging and insurance.

The Principal shall pay the compensation immediate and in full after receipt of WAFO’s invoice.

WAFO is entitled to issue advance payment invoices up to 50 % of the compensation agreed upon prior to start of manufacturing. WAFO has to provide equivalent securities on request of Principal before payment. Advance payments have to be credited against following invoices, if concerning performances advance payment has been effected for.

Payment shall be effected by debit note or inter bank payment transaction only. No cheque will be considered as fulfilment of the payment obligation. Bills of exchange are not accepted. Payment on dishonoured cheque or dishonoured debit note raises the compensation by 4%.

It may be agreed between the parties that the Principal has to deliver a letter or credit issued by his bank (or any bank acceptable to WAFO). 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, 1993 Revision, ICC Publication No. 500.

If the Principal fails of make any payment on the due date then, without prejudice to any other right or remedy available to WAFO, WAFO shall at its own discretion be entitled to:

• cancel the contract after setting a reasonable respite of not less than 4 working days and / or
• suspend the manufacturing of any further orders of the purchaser and / or
• in case the contract has not been cancelled, charge the Principal interest on the amount unpaid, at the rate of 1,3 percentage points per month, until payment in full is made. The Principal shall be entitled to prove that the delay of payment caused no or little damage only.

Principal shall only set off against claims if his claim has been established as final and absolute or is not denied by WAFO. The same applies to Principals rights of retention. In case of defects of goods the right of Principal to retain an appropriate part of the purchase price will remain unaffected.

WAFO reserves the right, by giving notice to the Principal at any time before delivery and / or completion of works, to re-establish the mode of payment, particularly to demand down payments for works already performed and / or advance payments for works upcoming from Principal, if the credit score of Principal at WAFO’s credit insurer changes for the worse after closing the contract. For advance payments the limitations of section 4.2 apply.

Delivery of the goods shall be made by the Principal collecting the goods at WAFO’s premises at any time after WAFO has notified the Principal that the goods are ready for collection or (“ex-works” – acc. to Incoterms 2000). If some other place for delivery is agreed on, consignment is executed by WAFO delivering the goods to that place.

If a fixed time for delivery is being agreed on this does not stipulate that time is agreed to be of the essence of the contract. The delivery time has to be denoted expressly as essential for the contract.

If a certain time for delivery is provided in the Contract, and WAFO fails to deliver within such time or any extension thereof is granted, the Principal shall be entitled, on giving to WAFO within a reasonable time notice in writing, to claim a reduction of 0,5% per week (and up to a maximum of 5%) of the compensation as damage by delay, payable under the contract, unless it can be reasonably concluded from the circumstances of the particular case that the Principal has suffered no loss. Principal is obliged to grant WAFO an additional respite of 3 weeks beforehand. This limitation of damages by delay shall not apply if the business had to be settled on a fixed date (§ 376 of the German Commercial Code) or if the delay was caused gross negligently or intentionally by WAFO, his agents or representatives or if there is any further breach of any essential contractual obligation.

If for any reason whatever WAFO fails within such fixed time of effecting performance, the Principal shall be entitled by notice in writing to WAFO to fix a deadline of minimum 3 weeks after the expiry of which the Principal shall be entitled to terminate the contract. Any further legal claims shall remain unaffected.

If the Principal fails to accept performance on due date, he shall nevertheless make any payment conditional on delivery as if the goods had been delivered. WAFO shall arrange for the storage of the goods at the risk and cost of the Principal. If required by the Principal WAFO shall insure the goods at the cost of the Principal. If the goods are stored by WAFO, the Principal has to collect the goods without delay.

WAFO is entitled to provide the goods by partial delivery if WAFO has legitimate interests in partial delivery and if it is reasonable for Principal.

In the case of goods to be delivered at WAFO’s premises the risk of damage or loss of the goods passes to the Principal („ex works“, Incoterms 2000) when Principal collects and accepts the goods.

If the Principal wrongfully fails to take delivery of the goods at WAFO’s premises, the risk of damage to or loss of the goods shall pass the time when WAFO has tendered delivery of the goods.

In the case of goods to be delivered to some other place than WAFO’s premises, WAFO delivers the goods without insurance. The risk of damage to or loss of the goods shall pass to the Principal at the time when the goods are handed over to the haulier if being shipped to the Principal on his demand.

Regardless whether the goods are being delivered to the Principal or collected at the premises of WAFO, the Principal hat to formally accept the goods without delay if the goods have been manufactured without defect.

Formal acceptance is granted if goods are received without reservation according to sec. 9.1.

As far as specifications given by the Principal are being kept by manufacturing, the work is considered as performed contractually and therefore ready for formal acceptance.

Notwithstanding delivery and the passing of risk in the goods and works, or any other provision of these conditions, the property in the goods shall not pass to the Principal until WAFO has received payment in full of the compensation for all other goods and works agreed to be performed by WAFO to Principal for which payment is then due (reserved goods).

After termination of the contract WAFO shall have absolute authority to retake, sell or otherwise deal with or dispose off all or any part of the reserved goods.

Until such time as the property in the reserved goods passes to the Principal, the Principal shall hold the reserved goods as WAFO’s fiduciary agent, and shall keep the reserved goods properly stored, protected and insured. Principal shall mark the reserved goods as property of WAFO.

Until that time the Principal shall be entitled to resell or use the reserved goods in the ordinary course of its business, but shall account to WAFO for the proceeds of sale or otherwise of the reserved goods including insurance proceeds, and shall keep all such proceeds separate from any moneys or properties of the Principal and third parties. Claims based on such sales are herewith assigned to WAFO. WAFO hereby accepts this assignment.

Principal remains entitled to collect receivables from third partiers resulting from the sale of delivered reserved goods, as long as Principal fulfils his contractual obligations.

If the reserved goods are processed or reshaped by the Principal and if processing is done with goods that WAFO has no property in, WAFO shall become co-owner of the goods in an appropriate extent. The same shall apply if WAFO’s goods are completely reshaped and mixed with other goods.

If third parties take up steps to pledge to otherwise dispose of the goods, the Principal shall immediately notify WAFO in order to enable WAFO to seek a court injunction in accordance with § 771 of the German Code of Civil Procedure. If the Principal fails to do so in due time he will be held liable for any damages caused.

WAFO shall on demand of the Principal release any part of the collateral if the value of the collateral held in favour of WAFO exceeds the value of the claims being secured. It is to WAFO’s decision to release those parts of the collateral suitable for WAFO.

Principal shall insure reserved goods against loss or damage at replacement value and assign all related claims against insurer upon request to WAFO.

The Principal shall examine the manufactured goods regarding defects without delay, at the latest within 10 days after delivery, as required by German Law (§ 377 of the German Commercial Code) and in doing so check every delivery in any respect and report defects to WAFO in written form.

WAFO shall not be liable for the goods being fit for a particular purpose unless otherwise known and agreed upon, to which the Principal intends to put them.

WAFO shall not be liable in respect of any defect in the goods arising from any design or specification supplied by the Principal or in respect of any parts, materials or equipment manufactured by or on behalf of the Principal unless such warranty is given by the manufacturer to WAFO.

This warranty does not cover defects in or damage to the products which are due to improper installation, maintenance, storage, misuse, neglect or any cause other than application agreed upon or ordinary commercial application. Claims under the German Product Liability Act remain unaffected.

Any claim by the Principal which is based on any defect in the quality or condition of the goods or their failure to correspond with specifications shall be notified to WAFO without delay.

The liability of WAFO shall be limited to the amount of the value of the damaged goods and to those damages that are proportionate regarding the value of the goods.

Any discharge from liability will be void if a defect results from a gross negligent or intentional breach of contract on the part of WAFO. The same applies if WAFO may be held responsible for the breach of any further essential contractual obligation or if the physical condition of persons is affected due to defects of goods. In such a case the liability is limited to what damage might typically be predicted, if no intentional breach applies. Furthermore, the liability for fraudulent concealment of a defect, for a guaranteed nature of the goods or for other injuries to persons remains unlimited.

WAFO reserves the right to improve or modify any of the products without prior notice, provided that such improvement or modification shall not affect the form and function of the product.

These terms and conditions supersedes and invalidates all other commitments and warranties relating to the subject matter hereof which may have been made by the parties either orally or in writing prior the date hereof.

Each party shall be responsible for all its accountancy or other costs and further expenses incurred in the performance of its obligation hereunder. This includes also extrajudicial legal costs.

WAFO reserves the right to transmit contract data relevant for determining the Principals credit score and the limit of the credit insurance to its credit insurer The provisions of the Federal Data Protection Act (BDSG) are observed.

Approvals of the Federal Office of Economics and Export Control (BAFA) possibly necessary for the export of the delivered goods need to be obtained by Principal on his own behalf and costs. Denial of such approval does not entitle Principal to cancel the contract.

This agreement shall be governed by and construed in accordance with German law excluding the Uniform Law on the International Sale of Goods. Each party agrees to submit exclusively to the jurisdiction of the courts having jurisdiction for WAFO (66955 Pirmasens - Germany).

WAFO shall have the right to bring a claim before a court at the Principal’s place of business or at discretion of WAFO before any other court being competent according to any national or international law.

Place of fulfilment for all contractual obligations is 66955 Pirmasens./ Deutschland