General Terms and Conditions of Sale, Delivery and Payment of INFRA EPS MACHINERY GMBH

I. Scope

  1. These Terms and Conditions of Sale shall apply only vis-à-vis entrepreneurs in terms of § 14 BGB [German Civil Code] when the contract is part of the business of the enterprise, as well as vis-à-vis legal persons under public law and special funds under public law in terms of § 310 (1) BGB.
  2. These Terms and Conditions of Sale apply to all business transactions between INFRA EPS MACHINERY GMBH GmbH (hereinafter referred to as 'INFRA') and the buyer, even if they are not mentioned in subsequent contracts. They apply accordingly to work and services. Taking delivery of goods is substituted by acceptance in the case of work and receipt of the service in the case of services.
  3. Any terms and conditions of the buyer that conflict with, supplement or deviate from these Terms and Conditions of Sale shall not form part of the contract unless INFRA has expressly agreed to their applicability in writing. These Terms and Conditions of Sale apply even if INFRA, having knowledge of conflicting or deviating terms of the buyer, makes delivery to the buyer without reservation.
  4. Any arrangements made in addition to or deviating from these Terms and Conditions of Sale and that are agreed upon between INFRA and the buyer to implement a contract must be put in writing in the contract. This shall also apply for the waiver of this written form requirement.
  5. Any rights that INFRA is entitled to pursuant to statutory provisions and that go beyond these Terms and Conditions of Sale shall not be affected.

II. Conclusion of Contract and Contract Amendments

  1. Quotations are subject to change and non-binding.
  2. Illustrations, drawings, specifications on weight, measurement, performance and consumption as well as other descriptions of goods in documents accompanying the quotation are only approximations unless they have been expressly designated as binding. They do not constitute an agreement or a guarantee of the characteristics of the goods.
  3. INFRA retains property rights and copyright to all quotation documents. Such documents may not be made available to third parties.
  4. An order shall only become binding if confirmed with a written order confirmation. An order confirmation placed by use of automatic appliances and lacking name and signature shall be considered a written order confirmation. INFRA 's silence regar- ding offers, orders, requests or other declarations from the buyer may only be conside-red a confirmation if this has been expressly agreed upon in writing. If the order confirmation contains obvious mistakes, misspellings or miscalculations, INFRA
  5. shall not consider it binding.

III. Scope of Delivery

  1. INFRA's written order confirmation shall be decisive for the scope of the delivery. Changes to the scope of delivery require INFRA's written confirmation to become effective. INFRA reserves the right to make changes to the construction and shape of the goods as long as these changes are insignificant and acceptable to the buyer.
  2. Partial deliveries shall be permitted.

IV. Delivery Period – delay of delivery.

  1. Any agreement on delivery periods and dates must be made in writing. Delivery periods and deadlines shall not be binding unless they have been specified as binding.
  2. The delivery period shall commence when INFRA has dispatched the order confirmation, however not before all documents, permits and approvals that the buyer has to provide have been furnished, all technical questions have been clarified as well as an agreed down payment has been received. Compliance with the delivery period is conditional on the timely and correct fulfilment of the buyer's other obligations. Date of delivery is also when written an in the contract always only a timetable as a preview. And is never a reason to stop or cancel an order when there will be a delay.
  3. There must always be given a reasonable grace period for delivery.
  4. If the buyer nevertheless stops or cancels the order the buyer is losing his full down payment.

V. Transfer of Risk

  1. The risk shall pass to the buyer as soon as the goods have been handed over to the person effecting transport or have left the INFRA warehouse for the purpose of shipment. If the buyer collects the goods, the risk shall pass to the buyer when rea- diness for shipment has been communicated. Sentences 1 and 2 also apply to partial deliveries or if INFRA has assumed additional services such as bearing transportation costs or the installation of the goods at the buyer's premises. At the request and expense of the buyer, INFRA shall take out transport insurance covering risks spe- cified by the buyer.
  2. If the buyer is in default of acceptance or violates any other duties to cooperate, INFRA shall be entitled to demand compensation for damages incurred including possible additional expenses. The risk of accidental loss or accidental deterioration of the goods passes to the buyer once the buyer starts being in default of acceptance. INFRA is entitled to dispose of the goods otherwise after an appropriate extension period has expired unsuccessfully and may supply the buyer within a reasonably extended period.
  3. Without prejudice to its warranty claims, the buyer is obliged to accept delivered goods even if they show minor defects.

VI. Prices and Payment

  1. Unless otherwise agreed, the prices are 'ex works' excluding packaging. Packaging shall be charged separately. Value added tax is not included in the price and shall be stated separately on the invoice at the statutory rate valid on the day the invoice is issued.
  2. Every price offer , proposal and delivery is always excluding any air extraction equipment and excluding any security gates ,- doors and -equipment for the INFRA machines. The buyer has to build this local at the place of production. All this equipments are to built by the buyer , corresponding to the local rules. Watch also notes in INFRA operation manual and instructions.
  3. Orders for which fixed prices have not been explicitly agreed shall be invoiced at INFRA's list prices valid on the day of delivery. The recording of the list price valid on the day of order on the order form or order confirmation shall not constitute an agreement of a fixed price. If production-related price increases occur by the date of delivery, INFRA shall be entitled to adjust the prices accordingly without regard to quotation and order confirmation.
  4. In the absence of a specific agreement, the delivery price must be paid within 30 days net without any deductions after receipt of invoice. Date of payment shall be the day on which INFRA has the delivery price at its disposal. In the event of late payment, the buyer has to pay default interest at a rate of 8 percentage points per an-num above the prime rate. INFRA reserves the right to assert additional claims.
  5. Deviating from point 3 above, payment for foreign business must be made prior to delivery unless otherwise agreed in writing.
  6. The buyer shall only be entitled to set off if its counterclaim has been established by a legally binding judgement or if it is undisputed. The buyer may only exercise a right of retention when the counterclaim is based on the same contractual relationship.

VII. Claims based on Defects, Guarantee and Liability

  1. As a prerequisite to the buyer's right to claim damages, the buyer must inspect the delivered goods on receipt and report any defects to INFRA in writing without delay, at the latest two weeks after receiving the goods. Hidden defects must be reported to INFRA as soon as they are discovered. The buyer must describe the defects in writing when notifying INFRA. The buyer's claims based on defects also presuppose that the specifications, statements and conditions in the technical statements, assembly and operation instructions, planning and lay-out design guidelines and other documents from INFRA for its individual products are complied with, in particular that maintenances are performed correctly and can be verified, and recommended components are used.
  2. If the goods are defective, INFRA has the option of subsequent performance either by rectifying the defect or supplying non-defective goods. If INFRA decides to rectify the defect, it is obligated to assume all costs necessary in connection with the rectification, in particular transport, travelling, labour and material costs unless these expenses are increased due to the fact that the goods have been moved to a location other than the delivery address. Personnel and material costs charged by the buyer in this regard must be invoiced at cost prices. Parts that are replaced become the property of INFRA and must be returned to INFRA.
  3. If INFRA is not prepared or able to provide subsequent performance, the buyer may, at its option, either rescind the contract or reduce the delivery price without prejudice to possible claims for compensation of damages or expenses. The same ap- plies if subsequent performance has failed, is unacceptable to the buyer or is delayed by an unreasonable period for which INFRA is responsible.
  4. The buyer's right to rescind is excluded if the buyer is unable to return performance received unless this inability is due to the fact that the nature of the performance received makes a return impossible, INFRA is responsible for this inability or the defect only became apparent when the goods were processed or modified. The right to rescind is further excluded if INFRA is not responsible for the defect and if INFRA is obliged to pay compensation for value instead of a return.
  5. Claims based on defects do not arise in the case of natural wear and tear, especially of wear parts, improper handling, assembling, operating or storing of the goods, or if changes or repairs have been performed incorrectly by the buyer or third parties. Therefore, especially to avoid typical defects and damages due to corrosion, unsuitable water, excess pressure, frost or overheating, the buyer must comply with the specifications, statements and conditions in the technical statements, assembly and operating instructions and other documents from INFRA for individual products. In addition, the buyer shall have no claim based on defects if the maintenances and in-spections required in the statements, assembly and operating instructions and other documents from INFRA for individual products, prescribed by legal provisions or recommended by relevant associations have not been performed correctly and timely and cannot be verified. The same applies to defects that are attributable to the buyer or to a technical cause other than the original defect.
  6. Claims of the buyer for reimbursement of expenses instead of damages in lieu of performance are excluded unless a reasonable third party would have incurred such expenses.
  7. INFRA shall not guarantee characteristics or durability unless otherwise agreed in writing for individual cases.
  8. INFRA assumes unlimited liability for damages arising from a violation of a warranty or in the event of harm to life, physical injury, or harm to health. The same applies to intent and gross negligence. INFRA is liable for slight negligence only in the case of a violation of essential duties that result from the nature of the contract and that are of particular importance for achieving the purpose of the contract. In the event of the violation of such duties, of default or of impossible performance, INFRA's liability is limited to the damages that might typically be expected to occur within the framework of the contract. Mandatory statutory liability for product defects shall not be affected.
  9. The period of limitations for the buyer's warranty claims is one year unless it concerns a defect in a building or the defective goods have been used for a building in accordance with their usual purpose of use and have caused the building to be defecti-ve. This period also applies to claims in tort that are due to a defect of the goods. The period of limitation begins on the date the goods are delivered. INFRA's unlimited liability for damages arising from violating a warranty or in the event of harm to life, physical injury, or harm to health, for intent and gross negligence and for product de-fects shall not be affected. A statement by INFRA on a claim based on defects asserted by the buyer should not be regarded as the commencement of negotiations with regard to the claim or the circumstances giving rise to the claim if INFRA rejects the claim based on defects to the full extent.
  10. Should INFRA's liability be excluded or limited, the same shall apply to personal liability on the part of all employees, co-workers, representatives and vicarious agents of INFRA.

VIII. Retention of Title

  1. INFRA shall retain title to the goods supplied until all INFRA's claims against the buyer from the business relationship have been paid in full. The buyer is obligated to treat the goods subject to the retention of title with due care for the duration of the retention of title. In particular, the buyer is obligated to adequately insure the goods at their replacement value against damage from fire, water and theft at its expense. At INFRA's request, the buyer must provide proof of insurance cover. The buyer already now assigns all compensation claims from such an insurance contract to INFRA. INFRA herewith accepts the assignment. Should an assignment be inadmissible, the buyer herewith irrevocably advises its insurer to make any payments solely to INFRA. Any further claims of INFRA shall remain unaffected.
  2. The buyer may only sell goods subject to the retention of title within the normal course of business. The buyer is not entitled to pledge goods subject to the retention of title, to assign them by way of security or make any other dispositions that jeopardise INFRA's ownership. In the case of attachments or other encroachments by third parties, the buyer must notify INFRA in writing immediately and supply all necessa-ry information, inform the third party about INFRA's property rights and cooperate in measures that INFRA takes to protect the goods subject to retention of title.
  3. The buyer already now assigns the claims arising from the resale of the goods to INFRA, including all ancillary rights, irrespective of whether the goods subject to the retention of title are resold without or after further processing. INFRA already now accepts this assignment. Should an assignment be inadmissible, the buyer hereby irrevocably advises the third-party debtor to make payments exclusively to INFRA. The buyer is granted the revocable right to collect the claims that have been assigned to INFRA in a fiduciary capacity for INFRA in the buyer's own name. The amounts collected must be paid to INFRA immediately. INFRA may revoke the buyer's power of collection as well as the buyer's authority to resell goods if the buyer fails to fulfill its payment obligations towards INFRA properly, falls into arrears with payments, stops payments or if the institution of insolvency proceedings against the buyer's assets has been filed. In the case of a blanket assignment on behalf of the buyer, the claims assigned to INFRA have to be expressly exempted.
  4. If the buyer defaults on payment, INFRA is entitled, without prejudice to its other rights, to rescind the contract without setting a prior deadline. The buyer must grant INFRA or its representatives immediate access to the goods subject to the retention of title and surrender them. After a timely warning, INFRA may otherwise dispose of the goods subject to the retention of title in order to satisfy its matured claims against the buyer.
  5. Any processing and transformation of goods subject to the retention of title by the buyer is always effected on behalf of INFRA. The buyer's expectant right to the goods subject to the retention of title continues in respect of the processed or transformed object. If the goods are processed or transformed with items that are not owned by INFRA , INFRA shall acquire co-ownership in the new item in proportion of the value of the goods delivered to the value of the other processed objects at the time of processing or transformation. The same applies if the goods are combined or mixed with items not owned by INFRA in such a manner that INFRA loses title thereto. The buyer shall store the new object on behalf of INFRA. In any other respects, the same conditions apply to the item created through processing or transformation as well as combination and mixing as those that apply for goods subject to the retention of title.
  6. At the buyer's request, INFRA is obligated to release its securities to the extent that the realisable value of the securities exceeds INFRA's claims from the business relationship with the buyer by more than 20%, while taking the valuation discounts customary in banking into account. The valuation shall be based on the invoice value of the goods subject to the retention of title and the nominal value of the claims. The choice of securities to be released lies with INFRA.
  7. For goods that are delivered to destinations with other legal systems where this retention of title regulation provides less security than in the Federal Republic of Ger- many, the buyer herewith grants INFRA an equivalent security interest. The buyer shall cooperate in all further measures necessary and conducive for the validity and enforceability of such security interests.

IX. Product Liability

  1. The buyer shall not modify the goods, in particular it shall not change or remove existing warnings about the dangers of using the contractual products incorrectly. If this duty is violated, the buyer shall indemnify INFRA in the internal relationship from any product liability claims of third parties unless the buyer is not responsible for the defect that gives rise to liability.
  2. Should INFRA be required to recall products or issue a warning due to a product defect, the buyer shall use its best efforts to cooperate in the measures deemed necessary and appropriate by INFRA and support INFRA, in particular in collecting customer data. The buyer is obliged to bear the costs of the product recall or warning unless it is not responsible for the product defect and the subsequent damage pursuant to principles of product liability laws. Any further claims of INFRA shall not be affected.
  3. The buyer shall notify INFRA in writing without delay if it becomes aware of any risks when using the goods or possible product defects.

X. Force Majeure

  1. Should INFRA be prevented from fulfilling its contractual obligations, in particular the delivery of goods, due to an event of force majeure, INFRA shall be released from its obligation to perform for the duration of the event and a reasonable start-up period without being liable for damages to the buyer. The same shall apply if INFRA's performance of its obligations becomes unacceptably difficult or temporarily impossible due to unforeseeable circumstances for which INFRA is not responsible, in particular industrial action, official measures, energy shortages, delivery pro-blems on the part of a sub-supplier or significant operational disruptions. This applies equally if these circumstances occur at sub-suppliers and also if INFRA is already in default. Should INFRA be released from the duty to deliver, INFRA shall refund any advance payments made by the buyer to it.
  2. After setting a reasonable time limit, INFRA is entitled to rescind the contract if such a disruption continues for more than four months and INFRA is no longer interested in performing the contract due to the disruption. At the buyer's request, INFRA shall declare after the expiry of this period whether it intends to exercise its right to rescind the contract or deliver the goods within a reasonable period of time.

XI. Confidentiality

  1. The parties undertake not to disclose any information made accessible to each other and marked confidential or otherwise recognisable as business or trade secrets for an unlimited period and not to record or divulge or utilise it unless this is necessary for the business relationship.
  2. The parties shall ensure by way of suitable contractual agreements with their employees and representative that they also refrain from using, disclosing or recording without authority any of these business and trade secrets for an unlimited period.

XII. Final Provisions

  1. The buyer may only assign rights and duties to third parties with INFRA's written consent.
  2. The law of the Federal Republic of Germany shall govern all legal relationships between the buyer and INFRA to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CSIG).
  3. The registered office of INFRA shall be the exclusive place of jurisdiction for all disputes arising from the business relationship between INFRA and the buyer. In addition, INFRA shall be entitled to bring legal action at the registered office of the buyer as well as at any other permissible legal venue.
  4. The registered office of INFRA shall be the place of fulfilment for all duties of the buyer and INFRA.
  5. Should any of the provisions of this contract be or become totally or partially invalid or unenforceable, or should a regulatory gap be identified in this contract, the validity of the remaining provisions shall not be affected. In place of the invalid or unen-forceable provision, a valid and enforceable provision that comes closest to the purpose of the invalid and unenforceable provision shall be agreed upon. In the case of a regulatory gap, the provision is deemed to be agreed upon that corresponds to the purpose of this contract and that would have been agreed upon, had the contracting parties considered this matter from the outset.
General Terms and Conditions of Supply, Delivery and Payment/