1. General

The following terms and conditions of COTEC GmbH shall exclusively apply to all present and future deliveries and work/performance by COTEC GmbH and they are hereby accepted by the customer with the order, even if they are not expressly referenced, but received by customer with the order confirmation of COTEC GmbH. Contradicting or deviating terms and conditions of customer attached to the order are not applicable, even if COTEC GmbH has not explicitly objected. Changes and amendments of the terms and conditions shall only be binding if explicitly confirmed in writing by COTEC GmbH.1

2. Offers/Contracts

Offers are non-binding. Supply contracts shall be binding upon COTEC GmbH confirming the purchase order and / or upon performing delivery of the goods.

3. Passing of Risk

The provisions of agreed terms of delivery according to the defined Incoterms shall be applicable.

4. Delivery Dates

4.1. Delivery dates are non-binding, unless they are agreed in writing with an express reference to delivery at a fixed date. Agreed delivery periods commence on the date of the order confirmation.

4.2. Part deliveries are permissible.

4.3. In cases of force majeure or other unforeseeable impediments which cannot be overcome by reasonable expenditure and for which COTEC GmbH is not responsible (e.g. interruption of operations, raw material shortages, strikes, etc.), the delivery periods shall be reasonably extended.

5. Payments

5.1. Unless otherwise agreed, payments must be made in due time and without deduction.

5.2. In case of default of payment, COTEC GmbH is entitled to charge default interest in the amount of 8 % above the applicable base interest rate according to § 247 of the German Civil Code (“BGB”). If the default results in a manifest higher loss, COTEC GmbH is entitled to claim such loss.

5.3. Bills of exchange and payment by check are accepted subject to prior agreement and only as provisional performance and shall only be deemed payment upon redemption in cash.

5.4. The customer shall only be entitled to the rights of set-off or retention, if its counter-claims are conclusively adjudged, undisputed or accepted by COTEC GmbH.

5.5 In the event customer is in default with any payment obligations towards COTEC GmbH, all existing payment claims shall be immediately payable.

5.6 COTEC GmbH shall be entitled to transfer claims resulting from the relationship with the customer.

6. Reservation of Title

6.1. COTEC GmbH retains title to the goods supplied until payment in full of all claims resulting from the ongoing business relationship with customer.

6.2. The customer shall only be entitled to resell, pledge, transfer title as security to, lease or send the goods abroad upon the prior written approval of COTEC GmbH. If the resale to third parties is part of the customer’s customary business operations, then by way of exception, customer shall be entitled to resell the supplied goods in the ordinary course of its business.

6.3. The customer herewith assigns to COTEC GmbH all claims and compensation rights to which customer is entitled with regard to the goods subject to COTEC GmbH’s reservation of title in the amount of the invoiced value of such goods. COTEC GmbH accepts the assignment. The customer is entitled to collect these claims as long as customer meets its payment obligations in a due and orderly manner and is not in default of payment.

6.4. The treatment and processing by the customer of the goods subject to COTEC GmbH’s reservation of title shall always be performed in the name and on behalf of COTEC GmbH. If such processing is performed with items not belonging to COTEC GmbH, then COTEC GmbH shall acquire title in the new object in the proportion of the value of the goods supplied by COTEC GmbH to the value of the other items processed. The same shall apply if the goods are mixed with other items that do not belong to COTEC GmbH.

6.5. In the case of seizures by third parties of the goods subject to reservation of title or of the newly processed items, the customer must point out COTEC GmbH’s title rights without delay. In case customer’s conduct is contrary to the terms of the contract, especially in case of default of payment, COTEC GmbH is entitled – even without setting a reasonable period for performance – to withdraw from the contract, to collect the goods subject to reservation of title and to enter for such purpose the place of storage or use of the goods. The customer waives the right to prevent unlawful interference with possession and permits COTEC GmbH access to the premises where the goods subject to reservation of title are located.

6.6. Claims assigned to COTEC GmbH may be directly collected by COTEC GmbH from the third party. The amount of the claims so collected minus the costs and interest incurred by COTEC GmbH shall be set off against the purchase price. Any surplus shall be forwarded to the customer.

7. Liability

7.1. The statements contained in catalogues, brochures, circulars, advertisements, illustrations and comparable publicly made promotional declarations about performance, dimensions, weights, prices and the like are non-binding, unless they are expressly made an integral part of a contract.

7.2 COTEC GmbH assumes liability for defects of the goods supplied (acc. to § 434 BGB). Goods showing a material defect within the limitation period shall at COTEC GmbH’s option be repaired, supplied anew or rendered anew free of charge. COTEC GmbH is entitled to undertake several repair attempts as far as reasonably acceptable for the customer. Material defect claims shall be statute-barred 12 months after delivery.

7.3. The liability for defects of the goods expires if the customer alters, treats or uses the goods wrongly or treats or uses the goods contrary to the instructions.

7.4. Claims for damages by the customer, irrespective of the legal basis, in particular if based on violations of contractual obligations and on account of tort, are excluded, unless liability is compulsory based on the German Product Liability Act (“Produkthaftpflichtgesetz”), or in cases of willful intent, gross negligence, due to infliction of death, physical injury or damage to health or the infringement of fundamental contractual obligations.

7.5. COTEC GmbH’s liability shall be limited to the amount of the purchase price, unless there is willful intent or gross negligence or liability is based on infliction of death, physical injury or damage to health.

7.6. If the repeat performance according to 7.2. is unsuccessful, the customer can at its option demand a reduction of the purchase price or the rescission of the contract in lieu of performance. In the case of only a slight infringement of the contract, especially in the case of only slight defects, the customer shall, however, not be entitled to a withdrawal.

7.7 Insofar as the goods supplied by COTEC GmbH are materials that will be physically, chemically or technologically treated or changed by the customer, their use as construction and/or structural material shall only be permissible with the prior written consent of COTEC GmbH.

7.8 Consulting services are rendered to the best of COTEC GmbH’s knowledge, excluding any liability. Statements and information about suitability, application and use of the contractual topic are non-binding and for information only, unless they are expressly made an integral part of the contract acc. to 7.1. The customer remains obligated to perform his investigations.

7.9 Research and development work is performed by COTEC GmbH with usual diligence and in accordance with the available scientific and technical knowledge. COTEC GmbH gives no warranty and especially no assurances that the results of the research and development work are economically usable and free from intellectual property rights of third parties.

8. Examination and Defect-notification Obligation

8.1. The customer must examine the goods after receipt without delay to the extent this is possible in the ordinary course of business. If a defect is apparent, COTEC GmbH is to be notified without delay. The defect notification period is 14 days and ends with COTEC GmbH’s receipt of a written notification. If the defect for which COTEC GmbH is responsible is only discovered at a later date, then notification must be made without delay after discovery of the defect.

8.2. COTEC GmbH’s liability expires if the customer does not comply with the obligations outlined in 8.1.

8.3. The contested goods shall be sent back to COTEC GmbH in the original or equally suitable packaging at reasonable cost.

9. Intellectual Property Rights

9.1 If COTEC GmbH has supplied goods made with drawings, models, and samples or acc. to customer’s specifications or used components supplied by the customer, customer is liable for any infringement of third party rights. Customer shall indemnify COTEC GmbH against any third party claims and reimburse incurred damages. Any charges incurred by COTEC GmbH thus far are for customer’s account. If a third party prohibits COTEC GmbH to manufacture or deliver goods based on its intellectual property right, COTEC GmbH is entitled to discontinue all contractual work without examining the legal merits. The costs of possible lawsuits are born by the customer.

9.2 All copyrights and industrial property rights to models, shapes, mechanisms, designs, and drawings designed by COTEC GmbH or third parties on its behalf belong to COTEC GmbH, even if paid by the customer.

10. Law and Jurisdiction

The supply contract concluded by COTEC GmbH with the customer shall be governed by and construed according to German law. The application of the UN sales law (CISG) and EC law is excluded.

Place of jurisdiction for both parties is the registered place of business of COTEC GmbH.

11. Validity

In case individual provisions of these terms are or become invalid, then this shall not affect the validity of the other provisions of these terms and conditions.

March 2014, Copyright COTEC GmbH