General Terms and Conditions

Article 1 Scope, Form

(1) The present General Terms and Conditions of Sale (“Conditions of Sale”) shall apply for all our business relationships with our customers (the “Buyer”). agaSaat GmbH (the “Seller”) sells exclusively on the basis of these Conditions of Sale. Our Conditions of Sale also apply for all following business transactions, without these being expressly referenced or agreed upon conclusion of such subsequent business transactions.

(2) Our Conditions of Sale shall only apply where the Buyer is an entrepreneur (Article 14 German Civil Code), a legal entity under public law or a special fund under public law.

(3) The Conditions of Sale shall apply, in particular, for contracts relating to the sale and/or supply of movable objects (“goods”), regardless of whether we manufacture the goods or purchase them from other suppliers (Articles 433,651 German Civil Code).

(4) Our Conditions of Sale apply exclusively. We shall not recognize deviating, conflicting or supplementary General Terms and Conditions of the Buyer unless we have expressly consented to their validity in writing. This requirement of consent applies in every case, for example, even where we deliver to the Buyer without reservation in the knowledge of the Buyer's General Terms and Conditions, or make reference to correspondence which contains or refers to the General Terms and Conditions of the Buyer or of a third party.

Article 2 Contract conclusion

(1) Our offers are subject to change and non-binding, unless otherwise provided in the sales offer.

(2) Order of the goods by the Buyer constitutes a binding contractual offer. We can accept purchase orders and orders with 14 days from receipt.

Article 3 Pricing and payment terms

(1) Unless otherwise provided in the order confirmation, prices are in EURO "ex works” from Neukirchen-Vluyn, including packaging. Any duties, fees, taxes and other public charges shall be borne by the Buyer.

(2) Statutory value-added tax is not included in our prices; this shall be shown separately on the invoice in the legally applicable amount on the invoicing date.

(3) Unless otherwise provided in the order confirmation, the purchase price (net) is due without deduction within 14 days from the invoicing date and delivery or acceptance of the goods. We are, however, entitled, at any time, in the context of an ongoing business relationship, to make delivery, in whole or in part, conditional upon pre-payment. We will provide notification of exercising this right, at the latest, with the order confirmation.

(4) The Buyer only has rights of set-off and retention where its claims have been legally established, are undisputed or are acknowledged by us. Furthermore, the Customer is only entitled to exercise a right of retention where its counterclaim pertains to the same contractual relationship.

(5) Where, after contract conclusion, it becomes apparent (for example, by an application to initiate insolvency proceedings) that our claim to the purchase price is jeopardized by the Buyer’s insufficient financial capacity, we shall be entitled, in accordance with statutory provisions on refusal of performance - where applicable, after setting a deadline - to withdraw from the contract (Article 321 German Civil Code).

Article 4 Delivery and delivery period

(1) Delivery dates and periods indicated by us are always only approximate, unless a fixed date or period has been expressly promised or agreed. Insofar as shipment has been agreed upon, delivery times and deadlines refer to the point of handover to the forwarder, carrier, or other third party assigned to transport the goods.

(2) We are not liable for impossibility of delivery or delays in delivery, to the extent that these are caused by force majeure or other events unforeseeable at the time of contract conclusion for which we are not responsible (e.g. operational disruptions of all kinds, difficulties with procuring materials or energy, transportation delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, difficulties with obtaining necessary official permits, administrative measures or no delivery, incorrect delivery or untimely delivery by suppliers). Insofar as such events make delivery or performance significantly more difficult or impossible for us, and the impairment is not merely temporary, we are entitled to withdraw from the contract. For hindrances of a temporary nature, the delivery or performance periods shall extend, or delivery or performance deadlines shall be postponed, by the period of the hindrance plus an appropriate grace period. Where the Buyer cannot reasonably accept the delivery or performance as a result of the delay, it can withdraw from the contract by immediate written notification to us.

(3) We are only entitled to make partial deliveries if the partial delivery can be used by the Buyer within the context of the contractually-agreed purpose, the delivery of the remaining goods ordered is ensured and no resultant, significant additional expenditure or additional costs accrue to the Buyer (except where we notify our readiness to cover such costs).

(4) Whether we are in delay with delivery is determined in accordance with statutory provisions. In every case, however, a reminder from the Buyer is required.

Article 5 Performance, transfer or risk, default of acceptance

(1) The place of performance for all obligations under this contractual relationship is Neukirchen-Vluyn, unless otherwise agreed.

(2) The shipping method and packaging are at our due discretion.

(3) Risk transfers, at the latest, upon handover of the delivery item (whereby the start of the loading process is determinative) to the forwarding agent, carrier or other third party contracted to carry out shipment to the Buyer. This also applies where we make partial deliveries or have assumed other services (e.g. shipment). Where dispatch or handover is delayed due to circumstances whose cause lies with the Buyer, risk transfers to the Buyer on the date on which the delivery item is ready for shipping and we notify the Buyer of the same.

(4) After transfer of risk, the Buyer shall bear storage costs at normal local rates. The right to assert and evidence additional or lower storage costs remains reserved.

Article 6 Retention of title

(1) Until complete payment of all present and future claims owed to us under the purchase agreement and ongoing business relationship (secured claims), we retain title to the goods purchased.

(2) Goods subject to retention of tile may not be pledged to third parties nor transferred as security until full payment of the secured claims. The Buyer must inform us immediately in writing, if an application for insolvency proceedings to be initiated is made or if there is access by third parties (e.g. seizure) to goods belonging to us. In the event of seizure, the Buyer must send us the bailiff's report and a statutory declaration noting that the objects seized are the same as those delivered by us. In the event of attachment of the assigned claims, the Buyer must send to us, without delay, the attachment and transfer order.

(3) If the Buyer acts in a way contrary to contractual obligations, in particular, by failing to pay the purchase price owed, we are entitled to require surrender of the goods. The request for surrender also constitutes a declaration of rescission. We are entitled to dispose of the goods after taking them back; the proceeds from disposal are to be credited to the liabilities of the Buyer – minus reasonable disposal costs.

(4) The Buyer is authorized, until revocation according to (c) below, to sell and/or process goods subject to retention of title in the ordinary course of business. In this case, the following provisions also apply:

(a) The retention of title extends to cover the items resulting from processing, mixing or combination with our goods to their full value, whereby we shall be considered as their manufacturer. Where third parties hold property rights in respect of processing, combination or mixing with their goods, then we shall acquire co-ownership in the ratio of the invoice value of the processed, combined or mixed goods. In addition, the same conditions shall apply for the resultant product as for goods delivered and subject to retention of title.

(b) Claims against third parties from resale of the goods or items are hereby assigned by the Buyer to us as security, in total or in the amount of our co-ownership share in accordance with the preceding paragraph. We accept such assignment. The obligations of the Buyer in paragraph 2. also apply to the claims assigned.

(c) The Buyer is entitled to collect the receivables, as we are also. However, we undertake not to collect the receivables, so long as the Buyer continues to meet its payment obligations to us, does not enter into default of payment and, in particular, is not the subject of an application for the initiation of insolvency proceedings and has not suspended payments. Nonetheless, where this is the case, we can require the Buyer to notify us of the assigned receivables and the relevant debtors and to provide us with all necessary information to collect the receivables and with accompanying documentation and to notify the debtors (third parties) of the assignment. Further, in this case, we are entitled to revoke the Buyer’s authority to resell and process goods subject to retention of title.

(d) Where the realisable value of the securities exceeds our claims by more than 10%, we undertake to release securities at our discretion upon request of the Buyer.

Article 7 Defect claims of the Buyer

(1) Statutory provisions apply for the rights of Buyer in relation to defects in goods or title (including wrong delivery and shortfall in delivery), unless otherwise provided hereinafter. In all cases, the special statutory provisions on final delivery to a consumer shall remain unaffected (recourse against suppliers pursuant to Articles 478, 479 German Civil Code).

(2) It is a prerequisite for defect claims of the Buyer that it has met its statutory duty to inspect the goods and notify defects (Articles 377, 381 German Commercial Code).

(3) Where the delivered goods are defective, we can decide on supplementary performance, either by rectifying the defect (repair) or by delivery of a defect-free object (replacement delivery). Our right to refuse supplementary performance under the statutory provisions remains unaffected.

(4) We are entitled to make supplementary performance conditional on the Buyer paying the purchase price owed. The Buyer is, however, entitled to withhold an appropriate proportion of the purchase price in proportion to the defect.

(5) The Buyer must provide us with the time and opportunity required for the supplementary performance, in particular, handing over the goods concerned for inspection purposes. In the event of replacement delivery, the Buyer must return the defective goods.

(6) We shall bear all expenses required for the purpose of inspection and supplementary performance, in particular, transport, travel, labour and material costs, insofar as a defect actually exists. Otherwise, we can require the Buyer to refund costs that result from an unjustified request for a defect to be remedied (in particular, transport and inspection costs), unless the absent defectiveness was not discernible for the Buyer.

(7) Where supplementary performance fails or the appropriate period set for supplementary performance by the Buyer expires unsuccessfully or is unnecessary under statutory provisions, the Buyer can withdraw from the purchase agreement or reduce the purchase price. There is no right of withdrawal in the event of an insignificant defect.

(8) Claims of the Buyer to damages or reimbursement of fruitless expenditure only exist for defects in accordance with Article 8 of these Conditions of Sale and are otherwise excluded.

Article 8 Other liability

(1) Unless these Conditions of Sale including the following provisions provide otherwise, we will be liable in the event of breach of contractual and extra-contractual obligations in accordance with statutory provisions.

(2) We shall be liable for damages - on any legal grounds whatsoever - in the context of fault-based liability in cases of intent and gross negligence. In the case of simple negligence, we shall be liable, subject to a more lenient standard of liability, in accordance with statutory provisions (e.g. for care in our own affairs) only

(a) for damages resulting from injury to life, limb or health,

(b) for damages resulting from a not insignificant breach of a fundamental contractual obligation (an obligation, which must be fulfilled for performance of the contract to be possible and which the contractual partner routinely expects and is entitled to expect will be complied with); in this case, our liability is, however, limited to foreseeable, typically-occurring damages.

(3) The limitations of liability resulting from paragraph 2. also apply for breach of obligations by or for the benefit of persons, for whose fault we are responsible according to statutory provisions. They shall not apply, insofar as we conceal a defect or have assumed a guarantee for characteristics of the goods and for claims of the Buyer in accordance with the German Product Liability Law.

(4) The Buyer is only entitled to withdraw or terminate due to a breach of obligations, if we are responsible for the breach of obligations.

Article 9 Limitation period

(1) By way of deviation from Article 438(1)(3) German Civil Code, the general limitation period for claims based on defects in goods or title shall be one year from delivery.

(2) Further special statutory provisions on limitation periods remain unaffected (in particular, Article 438(1)(1)(3), Articles 444, 479 German Civil Code).

(3) The above-mentioned limitation periods under sales law also apply for contractual and extra-contractual damages claims of the Buyer, which relate to a defect in the goods, unless application of the ordinary statutory limitation period (Articles 195, 199 German Civil Code) lead to a shorter limitation period. Damages claims of the Buyer according to Article 8(2)(1) and (2)(a) of these Conditions of Sale shall become statue-barred exclusively according to the statutory provisions.

Article 10 Applicable law, arbitration clause, place of jurisdiction

(1) The place of performance for both parties is our registered office in Neukirchen-Vluyn.

(2) For these Conditions of Sale and the contractual relationship between ourselves and the Buyer, the law of the Federal Republic of Germany applies to the exclusion of uniform international law, in particular, UN sales law, and German international private law.

(3) All disputes, which arise in connection with a contract, to which these Conditions of Sale are intended to apply, or its validity, shall be finally decided in accordance with the arbitration code of the Waren-Verein der Hamburger Börse e.V. without recourse to the ordinary courts of law. The place of arbitration shall be Hamburg. The number of arbitrators shall be 2, the number of presiding arbitrators shall be 1. The language of the arbitration proceedings shall be German.

(4) By way of deviation from paragraph 2 we are, however, also entitled, in the individual case, to bring a complaint before the ordinary courts. The exclusive place of jurisdiction - also for international purposes - for all disputes under the contractual relationship is, in this case, Düsseldorf.