Terms and Conditions

Framework Supply Agreement

Sec. 1 Scope, Form

(1) The parties, the business Elvinci.de GmbH (“vendor”) and the customer (“vendee”) shall bindingly agree upon the following integral parts of the contract. This agreement will only be valid, if the vendee is a contractor (Sec. 14 of the German Civil Code).

(2) These integral parts of the contract shall apply exclusively. Deviating, conflicting or additional conditions of purchase of the vendee shall not apply.

(3) Agreements, quality control agreements and specification included in our order confirmation shall apply.

(4) Vendee declarations and notifications relating to the agreement (e.g. setting a deadline, defect notification, withdrawal from the contract or price reduction) must be submitted in writing.

(5) References to the application of statutory provisions are only made for clarification. Therefore, statutory provisions shall apply even without such clarification, unless directly modified or expressively excluded in this agreement.

Sec. 2 Contract formation

(1) Vendor quotations shall infer no obligation and shall be non-binding.

(2) The order of the goods by the vendee shall be considered a binding contract offer. Unless otherwise stated in the order, we shall be entitled to accept the contract offer within 5 working days after its receipt.

(3) Acceptance can either be declared in writing (e.g. by order confirmation or as part of the invoice) or by delivery of the goods to the vendee.

Sec. 3 Term of Delivery and Delayed Delivery

(1) The appointment for collection shall be agreed upon individually or stated by the vendor upon acceptance of the order. If this has not been the case, the term of delivery shall be no less than 5 working days after contract formation.

(2) If the vendor cannot keep binding deadlines for reasons beyond his control (non-availability of performance), the vendor may partially or completely withdraw from the contract; the vendor shall immediately reimburse the vendee for any consideration already rendered. Further claims for damages by the vendee shall be excluded.

Sec. 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance

(1)

1. a) Delivery shall be made ex stock, which shall also be the place of fulfilment for the delivery and subsequent performance, if applicable.

2. b) On request and at cost of the vendee, the delivery can be sent to a different destination (sale by dispatch). Unless otherwise stipulated, the vendor shall be entitled to specify the manner of dispatch (especially carrier, dispatch route, packaging) independently.

(2)

1. a) The risk of accidental loss and accidental deterioration of the goods shall pass to the vendee no later than upon handover.

2. b) However, for sale by dispatch, the passage of the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall occur with delivery to the forwarder, carrier or any other person or agency tasked with the performance of the dispatch.

(3) If the vendee is in default of acceptance or fails to cooperate, or if the delivery of the vendor is delayed for other reasons for which the vendee is responsible, the vendor is entitled to demand reimbursement for the resulting damages including additional expenditures (e.g. storage costs).

(4) The vendor charges a lump-sum settlement of Euro 1.00 per pallet and calendar day, starting with the working day following the failed collection. If no collection date exists, charges start with notice of dispatch readiness of the goods but no later than 5 working days after order.

This does not apply to the verification of greater damages (especially reimbursement for additional expenditures, adequate compensation, withdrawal). The vendee may submit evidence that the vendor did not suffer damages at all or significantly below the above lump-sum settlement.

Sec. 5 Prices and Payment Terms

Unless otherwise stipulated in a given case, the vendor prices effective at the time of contract formation ex stock plus

• statutory sales tax,

• pallet costs,

• and freight charges as per quotation shall apply.

(2) For sale by dispatch (Sec. 4 (1)), the vendee shall bear the transport costs ex stock and the costs of any transport insurance requested by the vendee. The vendee shall bear any customs duties, fees, taxes and other public charges.

(3) The purchase price shall be due immediately and be payable no later than upon delivery or acceptance of the goods. However, the vendor is entitled at any time, also within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. The vendor shall state respective reservations with the order confirmation at the latest.

(4) Upon expiry of the above payment term (but after 6 working days at the latest) the vendee shall be in default. During the period of default, the purchase price shall bear interest at the applicable statutory default interest rate. The vendor reserves the assertion of further damages caused by default. With respect to merchants, the vendor’s claim to the commercial due date interest rate (Sec. 353 of the German Commercial Code) remains unaffected.

(5) The vendor shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed.

(6) If, after conclusion of the contract, it becomes apparent (e.g. by filing for insolvency proceedings) that the vendor’s claim to the purchase price is jeopardised by the vendee’s inability to pay, the vendor shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (Sec. 321 of the German Civil Code).

Sec. 6 Retention of title

(1) Until full payment of all current claims of the vendor arising from the purchase contract and an ongoing business relationship, the vendor shall retain the title to the goods sold.

(2) The goods affected by the retention of title must not be given in pawn or pledged as security to third parties before the guaranteed claims were paid in full. For the purpose of asserting the vendor’s right to separate satisfaction, the vendee shall notify the vendor in writing without undue delay if an application for the opening of insolvency proceedings is filed or if third parties seize the goods, which are the property of the vendor (e.g. attachment).

(3) If the vendee acts in breach of contract, especially when failing to pay the due purchase price, the vendor shall be entitled to withdraw from the contract in accordance with statutory provisions and/or to demand the goods to be returned due to the retention of title.

(a) The retention of title shall also extend to the incorporation or installation of the goods. If the incorporation or installation with goods of third parties results in the retention of their right of ownership, the vendor shall acquire joint ownership proportional to the invoice values of the combined or installed goods. Furthermore, everything that applies to the goods delivered under retention of title shall also apply to the resulting product.

(b) The vendee shall, for security reasons, assign to the vendor any claims against third parties arising from the resale of the goods or the product to the total amount or to the amount of the vendor’s joint ownership share, if any, according to the preceding paragraph. The vendor accepts the assignment. The obligations of the vendee described in (2) also apply in view of the assigned claims.

(c) Subsequently, the vendor is entitled to collect the claim. If this is the case, the vendor may demand that the vendee declares the assigned claims and their debtor to the vendor, provides all necessary information, hands over the respective documents and notifies the debtors (third parties) of the assignment of the claims. In that case the vendor shall furthermore be entitled to revoke the vendee’s authority to sell or process the goods under retention of title.

Sec. 7 Vendee’s Claims for Defects

(1) Concerning the vendee’s rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or faulty manuals), statutory provisions shall apply, unless otherwise stipulated below.

(2) The vendor’s liability for defects shall be based primarily on the agreement made concerning the quality and the expected usage of the goods (including paraphernalia and manuals). All product descriptions, the vendor’s lists and descriptions of defects, which are the subject matter of the individual contract or which have been made known to the vendee by the vendor (in particular on his internet homepage) at the time of contract formation shall be deemed the sole quality agreement in this sense.

(3)

(a) On principle, the vendor shall not be liable for defects which the vendee knows or is grossly negligent in not knowing at the time of contract formation (Sec. 442 of the German Civil Code).

(b) Furthermore, the vendee’s claims for defects shall presuppose that he has complied with his statutory duties of inspection and notification (Sec. 377, 381 of the German Commercial Code).

(c) For goods that are intended for installation or another form of processing, an inspection must in any case be carried out beforehand.

(d) If a defect becomes apparent upon delivery, inspection or at a later time, the vendor shall be notified thereof in writing without delay. Obvious defects must be reported in writing without delay in any case, but no later than within 5 working days after delivery and defects which are not recognisable upon inspection must be reported within the same period after discovery. If the vendee neglects to duly inspect and/or to report a defect, vendor liability for the defect which has not been reported in due time or manner, shall be excluded according to statutory provisions. For goods that are intended for assembly, attachment or installation this shall also apply if the defect only became apparent after the respective processing due to a breach of one of these obligations; in this case, the vendee shall not be entitled to claim compensation for related costs in particular (“removal and assembly costs”).

(4) If the delivered item is defective, the vendor may initially choose whether to provide subsequent performance by rectifying the defect (subsequent improvement) or by delivering an item of equal value (replacement delivery). If the type of subsequent performance chosen by the vendor is unreasonable for the vendee in a given case, the vendee may refuse it. The vendor’s right to refuse subsequent performance under statutory conditions shall remain unaffected. In this case, the contract is reduced or reversed.

(5) The vendee must

• notify the vendor of the defect in writing and, if applicable, with photos,

• give the vendor time and opportunity for the subsequent performance owed, in particular to hand over the rejected goods for testing purposes,

• In case of replacement delivery, the vendee shall return the defective item to the vendor on request according to statutory provisions.

Furthermore, the vendee shall forward the stock number, purchase price and a description of the defect by means of an Excel spreadsheet to the vendor at reklamationen@elvinci.de, in order to facilitate processing of the request.

(6) If a defect is in fact present, the vendor shall bear or refund the costs necessary for testing and subsequent performance, in particular transport, road, labour and material costs as well as removal and assembly costs in accordance with statutory provisions and this agreement. Otherwise, the vendor may demand that the vendee refunds the costs incurred by the unwarranted request for the rectification of a defect, if the vendee knew or was negligent in not knowing that there was in fact no defect.

(7) After an appropriate deadline for subsequent performance to be set by the vendee passed without result or is unnecessary in accordance with statutory provisions, the vendee may withdraw from the contract or reduce the purchase price in accordance to statutory provisions. However, in case of an insignificant defect, the right of withdrawal shall not apply.

(8) Claims of the vendee for damages or compensation for wasted expenditure shall only apply in accordance with sec. 8 and shall otherwise be excluded, even if defects are present.

(9) The rights and claims of the vendee concerning known defects or defects of second-hand goods shall be excluded.

Sec. 8 Other Liability

(1) The vendor shall be liable for damages – irrespective of legal grounds – within the scope of fault-based liability in the event of intent and gross negligence. In the event of ordinary negligence, the vendor shall be liable, subject to statutory limitations of liability (e.g. diligence in own affairs; insignificant breach of obligation), only

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

for damages resulting from the breach of an integral contractual obligation (the fulfilment of the obligation enables due performance of the contract in the first place and the partner regularly relies on and may rely on the compliance with the obligation); in this case, the vendor’s liability is limited to the predictable and typically occurring damages.

(2) The limitations of liability resulting from (1) shall also apply to third parties as well as in the event of breaches of obligations by persons (also in their favour) for whose culpability the vendor is responsible pursuant to statutory provisions. They shall not apply in case of fraudulent concealment or in case the quality of the goods was guaranteed and to claims of the vendee under the product liability act.

(3) For a breach of obligation that does not constitute a defect, the vendee can only withdraw from the contract if the vendor is responsible for the breach.

Sec. 9 Statute of Limitations

At variance from sec. 438 (1) No. 3 of the German Civil Code, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance was agreed upon, the limitation period shall begin at the time of the acceptance.

Sec. 10 Governing Law and Place of Jurisdiction

This contract and all legal relations between the vendor and the vendee shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

(2) If the vendee is a merchant in the sense of the German Commercial Code, our registered offices in Nuremberg shall be the sole – also international – place of jurisdiction for any disputes arising directly or indirectly from the contractual relationship. The same shall apply if the vendee is a contractor in the sense of sec. 14 of the German Civil Code.