General Trading Conditions

I. Scope, Differing Conditions, Severability

1. These conditions shall apply to all current and future business transactions between ELTACHEM GmbH and the customer. They shall apply at the latest when the customer takes receipt of the goods or service as agreed.

2. We do not recognise any conditions of the customer which differ from our terms and conditions, even for future business transactions. Such terms and conditions of the customer shall only be binding on us if we have expressly agreed to their applicability in writing.

3. Should any of these terms or any part thereof be or become invalid, the same shall be deemed to be severable and the validity of the other terms herein shall not be affected.


II. Quotations, Representations Concerning Properties, Written Form

1. Our quotations are without engagement; the prices contained in our cost estimates and freight quotes shall not be regarded as firm. The customer shall not make the information contained in our quotations available to third parties.

2. Information, recommendations, quotations and agreements made by our employees as well as side agreements, reservations, amendments and supplements to contracts shall not be valid unless confirmed in writing.

3. The representations we make on the properties of the goods, such as patterns, samples, analyses, drawings, weights, qualities and measurements as well as standards, shall only be considered approximations unless we expressly declare in writing that they are guaranteed.


III. Official Approvals, Environmental Protection

We shall not be responsible for obtaining approvals and permits from the authorities. The customer warrants that he will observe the safety and environmental protection regulations.


IV. Prices

1. We shall be allowed to increase the prices stated in the contract if the agreed delivery period is more than four months. With delivery periods of up to six months, the increase may be up to 3 %, with longer delivery periods not more than 6 %. ELTACHEM GmbH shall, however, only be able to raise the price if its own costs increase (e.g. if material and/or wage costs, import charges and taxes rise). If the price increase is more than 5 %, the customer may withdraw from the contract by making a written declaration within three weeks from receipt of notification of the price increase. If the customer decides to take a smaller quantity, the graduated prices for the amount the customer actually takes shall apply.

2. Notwithstanding paragraph 1 hereinabove, ELTACHEM GmbH shall be entitled to charge the price generally applicable on the delivery date unless a firm price has been agreed in writing. If, before the delivery date, the costs relating to the manufacture, sale and transportation of the goods (including public charges) increase or the basis for their calculation is changed, the purchase price to be paid by the customer shall increase, even if these costs are not charged separately from the price. If ELTACHEM GmbH is not allowed by law to pass the higher costs on to the customers, we shall be entitled to withdraw from the contract.

3. Carriage paid prices shall be subject to the condition of unobstructed transportation.

4. The prices charged in the previous order shall only apply to repeat orders if we expressly confirm this in writing.

5. Unless otherwise stated in the order acknowledgement, the prices shall be ex our regional distributing warehouse or in the case of direct business ex works, in each case packing excluded. These prices are net of value-added tax, which shall be added at the rate prevailing on the date of the invoice.


V. Delivery, Passing of Risk

1. The quantity delivered shall be ascertained according to one of the methods customary in business which we shall choose at our own discretion. The contract shall be deemed to have been duly performed even if the quantity delivered is more or less than the quantity sold provided said difference is considered normal in commercial practice. We shall be entitled to make partial deliveries provided the customer can be reasonably expected to accept such deliveries. The data established by the dispatch office shall govern the quality. The acceptance of receipt of the goods by the customer/forwarding agent/carrier shall be considered as proof of the quantity, undamaged packing and loading of the goods.

2. We shall only be bound by delivery dates and delivery periods which we confirm in writing. All delivery dates/periods shall be subject to transport routes and means of transport being available to the customary extent and shall be considered to have been met provided the goods leave the dispatch point early enough to arrive at the recipient's on time, allowing for a normal transport time. We shall be released from our duty to deliver if our suppliers do not deliver to us in time for reasons for which we are not responsible.

3. The customer shall assist with delivery by notifying us in good time of any conditions which may make delivery more difficult (e.g. bad access road, long hose distances).

4. The risk of accidental loss of the goods shall pass to the customer as soon as the goods are ready for collection, but at the latest when the goods are loaded onto the means of transport. We shall not be obliged to expressly notify the customer that the goods are ready. The customer shall be obliged to protect his rights vis-à-vis third parties, in particular companies engaged to transport the goods.

5. If delivery/collection is delayed for reasons for which the customer is responsible, he shall bear the storage costs and the risk of accidental loss.


VI. Unloading

The customer shall unload the goods without delay and in a proper manner. Should we help with the unloading, this assistance shall be without legal obligation for us and at the customer's risk.


VII. Delivery Difficulties

1. If circumstances or events for which we are not responsible prevent or considerably impede delivery, we shall be released from our obligation to deliver for the duration of their effect. The aforementioned shall also apply if our suppliers are released, either in whole or in part, from their obligation to deliver or if normal procurement and transportation possibilities are no longer available. In such cases we shall, even if we were already late in delivering, be entitled to delay delivery correspondingly and also include a reasonable resumption period. Furthermore if the delivery periods are exceeded by more than four weeks, we shall, at our discretion, also be entitled to withdraw in whole or in part from the contract immediately or at a later date. After four weeks have passed, the customer may set us a reasonable period of grace stating that he will refuse to take delivery after expiry of said period. If delivery has not taken place by expiry of the period of grace set by the customer, he shall be entitled to withdraw from the purchase contract by giving notice thereof in writing or, if we are responsible for the delay in delivery, to demand compensation for non-performance in accordance with Section IX, paragraphs 2 and 3 hereinbelow.

2. If in cases pursuant to paragraph 1 hereinabove, we do not have enough goods to satisfy the requirements of all customers, we shall be entitled to reduce our delivery obligations to all customers proportionately. Furthermore, we shall be released from our delivery obligations.


VIII. Complaints

1. The customer shall report in writing all obvious and recognisable defects in the goods and packing, missing quantities or incorrect deliveries within 14 days from delivery of the goods, but in any case before their resale, processing, blending, use or installation, in commercial transactions as defined by Section 310 of the German Civil Code (new version) immediately. The customer shall report hidden defects in writing immediately after their discovery, but at the latest within six months from delivery. If the customer does not meet the above-mentioned obligations, the goods shall be considered to have been approved. A customer's complaint about a delivery or service shall not entitle him to refuse to take delivery of other goods or services from the same or from another contract.

2. The customer shall notify us immediately in writing of any damage which has occurred in transit and prove said damage to the carrier by furnishing the appropriate documents.

3. Measures to reduce the damage shall not be considered recognition of defects. Our entering into negotiations about any complaints does not mean that we waive our right to object that the complaint was not submitted in good time, was unfounded or was otherwise inadequate.


IX. Subsequent Performance, Liability

1. The customer shall not be entitled to make claims against ELTACHEM GmbH on the basis of insignificant defects in the goods. A defect shall be considered to be an insignificant defect in the goods in particular when the value or the suitability of the goods for their customary use is only insignificantly impaired. If a complaint is justified, we shall, at our discretion, either rectify the fault or deliver a replacement and take back the faulty goods. Subsequent performance shall be excluded if this would involve disproportionate costs for ELTACHEM GmbH. If rectification of the fault is not successful or replacement goods cannot be provided, the customer may, at his discretion, demand that the price be reduced or that the contract be rescinded. If the customer also has claims against third parties, we may demand that claims should only be made against us when legal action against the third party has failed.

2. ELTACHEM GmbH shall be liable, regardless of the legal grounds, only if the damage has been caused through culpable breach of a major contractual obligation in a manner which would jeopardise the achievement of the purpose of the contract or is a result of gross negligence or wilful intent on the part of ELTACHEM GmbH. If a major contractual obligation is breached without gross negligence or wilful intent on the part of ELTACHEM GmbH, our liability shall be limited to the extent of damage which ELTACHEM would have typically had to expect on conclusion of the contract on the basis of the circumstances known to ELTACHEM GmbH at that point in time. The typical foreseeable extent of damage shall be the value of the goods delivered under the contract.

3. ELTACHEM GmbH's liability for agents and servants shall be limited to their careful selection and any supervision which may be necessary. Our liability in cases of gross negligence or wilful intent shall be limited to an amount of max. € 20,000 per claim. ELTACHEM GmbH shall not be liable for indirect damage, collateral damage, consequential damage and solely pecuniary damage as well as lost profits.

4. The aforementioned provisions shall not limit or exclude any claims pursuant to the German Product Liability Law or resulting from the assumption of a warranty or the loss of life, personal injury or illness.


X. Terms of Payment, Set-off

1. Our invoices shall be payable immediately on receipt without deduction. The customer shall only be entitled to withhold payment or exercise any right of set-off if the claim he has against ELTACHEM GmbH is res judicata, is ready for decision or is undisputed. The persons mentioned in Section 310 of the German Civil Code (new version) shall be excluded from exercising the right to refuse to perform/right to withhold.

2. Payment shall not be deemed to have been made until we can dispose of the amount. If we accept bills of exchange or cheques, then only on account of performance, subject to the discounting possibilities and against immediate reimbursement of all charges. We shall not be obliged to submit bills of exchange or cheques in good time.

3. Our employees shall not be entitled to accept payments or give other orders without our written authorisation.


XI. Delays in Payment, Questionable Creditworthiness

1. If the customer is late in making payment, all rebates, cash discounts and other special reductions granted by ELTACHEM GmbH shall be cancelled.

2. If the customer does not meet his payment obligations, in particular if he stops payment or a cheque is not honoured, or if we become aware of other circumstances which make the customer's creditworthiness questionable, we shall be entitled to demand immediate payment of the remaining debt even if we have accepted cheques/bills of exchange; we shall furthermore be entitled to demand payments in advance or the provision of security; we may also hold back deliveries or refuse to make deliveries in whole or in part not only under the relevant contract but also under other contracts and demand immediate cash payment of all deliveries.


XII. Intergroup Settlement Clause

1. The customer herewith agrees that the claims that we (see paragraph 6 hereinbelow) have against him shall be due to us as joint creditors. These claims may also be set off against liabilities of ELTACHEM GmbH towards the customer.

2. All material and procedural rights which the customer has regarding a claim against us shall also exist against the other joint creditors.

3. Above and beyond the provisions of paragraph 1 hereinabove, claims of the customer against us can be offset against claims of us to which the customer belongs.

4. The above-mentioned provisions shall also apply if on the one hand cash payment and on the other the issuing of a bill of exchange has been agreed and if the reciprocal claims are due at different times, the value date being taken for accounting purposes.

5. The customer herewith waives the right to contradict our determination of the claims to be offset in the case of a majority of claims (Section 396, para. 1, sentence 2 of the German Civil Code).


XIII. Authorisation to Sell, Authorisation to Collect, Restraint on Disposition

1. The customer shall be authorised to sell our property in the course of normal business. He shall also be authorised, subject to revocation, to collect the claims which he has assigned to us. This authorisation shall cease if the customer is in default or if he agrees the non-assignibility of claims with his customer.

2. The authorisation to collect shall also cover the authorisation to assign the claims assigned to us as part of a real factoring contract with standard conditions as long as the customer notifies us of his co-operation with the factoring company. The customer already assigns to us here and now his current and future claims against the factoring company insofar as they relate to the goods we deliver. The customer undertakes to notify the factoring company of this assignment and to instruct the latter to pay solely to us if we so request.

3. Furthermore, the customer shall not be permitted to assign the claims assigned to us to third parties, particularly as part of a blanket or global assignment.

XIV. Retention of Title, Security

1. Secured claims, release in the case of surplus security. The following securities shall be provided until full payment of all claims, including claims for the balance outstanding on an account, which we (see Section XII above) have against the customer and the companies in his group regardless of the legal reason. If we accept bills of exchange or cheques, this shall also apply until they have been honoured. If the value of the securities provided by the customer exceeds our claims against him by more than 20 % in total, we shall, on the customer's request, be obliged to accordingly release securities at our discretion. All securities with which the customer provides us shall at the same time be considered to have been provided for the benefit of us and can be realised to satisfy claims.

2. Retention of title, treatment and processing, mixing and joining. The goods shall remain our property until all claims have been paid in full. Any treatment and processing of the goods shall always take place on our behalf but without any obligation on our part to the exclusion of the company performing the treatment or processing acquiring ownership in accordance with Section 950 of the German Civil Code. If the goods are mixed, joined or processed with other goods, the customer shall, insofar as we are not already joint owners of the new goods in the ratio of the value of the goods subject to retention of title (cost prices) to the value of the other goods at the time of the joining, mixing or processing, already assign his ownership or co-ownership and right to possess the new goods to us and shall keep them safe for us. The pledging or transfer of our property/joint property by way of security is herewith forbidden.

3. Extended retention of title. In case the customer sells our goods (in a treated, processed, mixed or joined form), he assigns to us here and now all resulting claims against his customers, including any claims for payment of work, with all subsidiary rights, in particular securities and the right to create a debt-securing mortgage (Section 648 of the German Civil Code). If the customer sells our goods after processing, joining or mixing them with goods which do not belong to us, we shall be joint creditors together with the other persons having legal claims (fiduciaries). In the alternative, the customer's claim against his customer shall be assigned in the ratio of the selling price of the goods subject to retention of title delivered by us to the value of the goods sold by the customer. The assignment to us shall always relate to the part of the claim still realisable. At our request, the customer shall disclose this assignment and give us the necessary information and documents. Furthermore, the customer shall herewith assign to us any future claims for damage to the goods we deliver.

4. Enforcement of retention of title, claims of third parties, claims arising from possession. We may store our goods separately, mark or collect our goods at the customer's expense and forbid any disposal of the goods. If we take back the goods on the basis of retention of title, this shall not be considered as a recission of the contract and the customer shall be obliged to give back the goods at his own expense; he shall be liable for any reduction in value, the costs we incur when taking back the goods (at least 10 % of the price) and lost profits. He shall waive claims arising from possession.

5. We shall, at any time, be entitled to demand securities at our discretion (in particular encumbrances of real property) and that these securities be increased to ensure that the customer meets his obligations. We shall be entitled to take and use as security/pledge any assets of the customer which are subject to our actual influence.




XV. Outer Packaging, Road Tankers Including Accessories, Drums, Adapters (Containers)

We shall not be obliged to check the containers provided by the customer for their suitability, in particular for cleanness. We shall not be liable for damage or defects which occur as a result of faulty containers or containers which are unsuitable for other reasons. Containers provided by ELTACHEM GmbH or third parties may neither be exchanged nor used as storage containers nor passed on to third parties and shall be returned immediately to us or to a point which we designate. If the containers are returned late, ELTACHEM GmbH shall have the right to charge an appropriate rent. The customer shall also be liable, even if he is not to blame, for inappropriate use, damage or loss of containers which we have made available or given to him or a third party which he has designated.


XVI. Data Storage

In the course of normal business, we store personal data of the customer.


XVII. Venue, Applicable Law

1. The sole venue for any disputes relating to all current and future claims arising from our business relationship with the customer shall be the location of our company's registered office if the customer is a merchant in accordance with German law, a legal entity under public law or a fund under public law or if the customer does not have a general venue in Germany or his place of residence is not known at the time when legal action is initiated. Furthermore, the customer's place of residence shall be deemed to be the venue for any disputes relating to our claims against the customer.

2. German law as applicable to business transactions between Germans in Germany shall apply exclusively to the contract.