1. Preamble

1.1 The present Terms & Conditions for purchasing or ordering of goods or
commodities of the OKE Group of companies (hereinafter referred to as OKE)
shall apply exclusively, unless amended by an express written agreement
between the parties. These agreements shall also apply if OKE accepts
deliveries of goods by the seller and conflicting sales terms of the seller exist,
which however are not the basis of the contract.
1.2 Any agreement reached between the seller and OKE shall only be legally
effective if it was made in writing between the parties. Any other additional
terms and conditions or contract clauses that were introduced by the seller
shall be considered as rejected as long as OKE has not consented in
writing to these additional provisions.
1.3 All future individual contracts between OKE and the seller shall be based
on the present Terms & Conditions, under simultaneous exclusion of any
contrary general terms and conditions of contract.
1.4 Contracts for delivery or delivery instructions and any other legal
transactions to be concluded between OKE and the seller, and (if applicable)
amendments or changes to be carried out to these, must always be made in
writing. Purchase orders and also the above-mentioned legal transactions
may be executed through remote data transmission (RDT), if this is usual
between the parties. In other respect, the present Terms & Conditions of
Purchase shall only apply to contracts between businespersons.

2. Conclusion of contracts

2.1 A sales contract shall only be deemed as concluded if OKE has made a
written declaration of acceptance after receipt of an offer within the period of
validity of the offer.
2.2 Details of measures and weights, quantities, prices, other descriptions
and other data as may be contained in catalogues, circulars, adverts, notices
or price lists shall only constitute approximate values and are not binding for
OKE, unless they are expressly incorporated into the contract. This data, which
was transmitted to the seller before the conclusion of a contract, shall remain
the exclusive property of OKE and may not be made available even to third
parties.
2.3 OKE is entitled within reasonable limits to demand changes to the delivery
item with regard to its design and workmanship. The impact, in particular of the
additional costs or deductions as well as the dates of delivery, must be defined
reasonably between the parties. Any changes by the seller shall require prior
written approval by OKE.
2.4 The seller is obliged to send OKE a written confirmation of the order within
10 working days after the date of the purchase order. If the seller fails to comply
with this obligation, OKE is entitled to cancel the order without stating reasons.
2.5 If insolvency proceedings or any other judicial or extrajudicial proceedings
are initiated over the seller's assets, OKE is entitled to withdraw from the
contract for the unfulfilled portion without stating reasons.

3. Purchase price

3.1 The price stated in the purchase order shall be binding and based on the
agreement "delivered customs cleared".
3.2 The agreed purchase price shall include delivery "free domicile" including
packaging and the assumption of the costs of transport insurance and
statutory turnover tax, which shall be stated separately on the invoices.
3.3 Invoices must be drawn up by the seller stating the order and article
numbers without delay after dispatch of the goods.
3.4 Price reductions must be notified in writing by the seller and credited to
OKE. If OKE has already rendered its performance, it may demand to have
it returned, whereupon the seller shall waive objections or defences or pleas
of any kind.

4. Terms of payment

4.1 Payment and delivery shall be effected in such a way as is agreed by the
parties in a given case. Unless an agreement is made in a given case,
payment shall be made at 3% cash discount within 30 days after delivery
and receipt of invoice, or alternatively strictly net within 60 days. The due
date of early deliveries shall be determined by the delivery date actually
agreed.
4.2 All payments made to OKE shall be effected subject to the express
reservation of orderly delivery by the seller as well as the correctness of
the calculation and price of the invoice.
4.3 Should OKE be entitled to any claims resulting from breach of warranty
based on the delivery of defective goods or services, it shall have the right
to retain the payment in the full amount until orderly performance by the
seller. In such case, OKE is entitled to set off.

5. Terms of delivery

5.1 The delivery must be made on the date of delivery stipulated in the
sales contract or order.
5.2 The seller is obliged to promptly notify OKE in writing if a delay in
delivery occurs.
5.3 OKE's dispatch regulations must be complied with; in particular,
OKE's order and item numbers must be stated in all shipping documents,
letters and invoices.
5.4 If the seller delivers before the agreed delivery date, he shall bear all
associated costs, in particular also for the storage by OKE. Should it be
impossible for OKE to accept the early delivery, OKE shall be entitled to refuse
acceptance of the deliveries.
5.5 In the case of delay in delivery by the seller, OKE is entitled to demand from
the seller in writing default damages for any costs additionally incurred
(e.g. for transport, insurance, storage), however not more than 10% of the
entire value of the contract.
5.6 A contractual penalty in case of a delay in delivery may be agreed between
the parties in individual contracts. Express reference is made to clause 7.3 of
this agreement.
5.7 Parties employed in performing a contractual obligation for whom the
seller is vicariously liable, vicarious agents or other agents of the seller who
carry out work on the works premises of OKE in the performance or fulfilment
of the subject matter of the contract, undertake to observe the valid provisions
of the operational rules of OKE. Liability for accidents occuring to the
above-mentioned persons on the site premises of OKE shall be excluded,
unless these accidents were caused by an intentional or grossly negligent
breach of duty by the legal representatives of OKE or their parties employed
in performing a contractual obligation for whom the principal is vicariously
liable or vicarious agents.

6. Passing of risk

6.1 Unless otherwise provided for in the individual contracts for delivery, the
time of the passing of risk shall be stipulated in accordance with the
Incoterms of the International Chamber of Commerce (Incoterms 2000).
6.2 If there is no agreement on the passing of risk, the clause "delivery duty
paid" (Incoterms 2000) shall apply in principle.

7. Acceptance

7.1 Subject to section 377 of the German Commercial Code (HGB), OKE has
the right to inspect the delivered goods for obvious or visible defects without
delay after receipt, and accept these only after such inspection. The seller
shall bear the cost for justified notices of defect and the delivery of
replacement goods.
7.2 The values for measures, weights and units established during the
inspection of incoming goods shall be binding on both parties. In the event of
significant deviations, OKE shall notify the seller within 14 days after the
inspection of incoming goods.
7.3 OKE shall retain the claim for a contractual penalty agreed in individual
contracts, even if this is not expressly asserted when accepting the delivery.

8. Warranty for defects

8.1 Warranty for defects in quality

• The seller warrants that the goods delivered by him will be free of defects,
  have the warranted properties and meet the requirements of OKE.
• The seller's liability for defects shall exist for two years, calculated from
  the time of the delivery. In the event of a defect of the item of sale for which the
  seller is responsible, OKE shall be entitled at its own discretion to demand
  from the seller the remedy of the defect or the delivery of replacement goods,
  for which the seller must bear the costs. Apart from this, OKE shall retain its
  claims for a reduction of the purchase price.
• In urgent cases, OKE is entitled to have the remedy of the defect carried out
  alternatively by itself or through a third party at the expense of the seller; in such
  cases, this shall be done in consultation with the seller.
• All deliveries of replacement goods or repairs are equally part of this warranty
  for defects stipulated in the Terms & Conditions of Purchase.
• The seller is liable without restriction for deliveries of replacement goods,
  repairs and remedies of defects to the same extent as for the original delivery
  item in terms of transport, road toll and labour costs.
• The seller undertakes to indemnify OKE against any third party claims that are
  incurred by the third party against OKE based on product liability and have
  arisen due to a defect or an error in the delivered product. This indemnity shall
  expressly also apply to reasonable costs for a recall campaign. In this regard,
  the seller warrants the continued existence of an appropriate product liability
  insurance.
• If exceedance of the maximum permissible proportion of errors is determined
  in accordance with the testing procedure referred to in the order, OKE is entitled
  to assert claims based on defects in respect of the entire delivery, or to inspect
  the entire delivery for defects and errors at the expense of the seller.

8.2 No breach of legal norms
The seller warrants that the performance of the individual sales contracts will
not effect any breach of law in terms of the compliance with laws, orders,
decrees or other provisions by any official entity.
8.3 Warranty for defects in title
The seller warrants that it owns completely all items governed by the sales
contracts and that no conflicting third party rights (such as for example liens,
other creditors from the assignment of receivables or other securites for a loan,
the sale of receivables, lease-purchase agreement, hire-purchase etc.) are
opposed to this.

9. Other provisions

9.1 This agreement shall replace all prior agreements made by the parties in
writing or verbally regarding these fields of business; any prior agreements
shall become invalid upon signature of these Terms & Conditions of Purchase.
9.2 The rights to this relationship may not be assigned by either contracting
party without the prior consent of the other party.
9.3 Each party shall bear its own costs incurred in connection with the
implemenation of this contract.
9.4 Enquiries, purchase orders, order confirmations as well as any other
correspondence by OKE with the seller may not be used for advertising
purposes. This does not apply if OKE has given its prior written consent to the
advertising and the form of the advertising was stated clearly by the seller and
approved in writing by OKE.
9.5 The place of performance shall be the place to which the delivery item must
be delivered in accordance with the order.

10. Jurisdiction; Applicable law

• This agreement is subject to German law. Any legal dispute based on the
  business relationship shall be finally decided by a court of arbitration,
  composed of one or several arbitrators and acting on the basis of the
  guidelines for arbitration proceedings of the International Chamber of
  Commerce.
• Instead of bringing an action before the court of arbitration, OKE is also
  entitled to bring its case before an ordinary court competent in terms of the
  subject matter and location.

11. Severability

• Should one of the above contractual provisions be or become ineffective, the
  remaining provisions shall remain in full effect.
• Should one of the above contractual provisions be or become ineffective, the
  parties will replace such provision by means of renegotiation.

 

Version: June 2008

1. Preamble

1.1 OKE's Terms & Conditions for the sale of goods and commodities shall
apply exclusively, unless they are amended by an express written agreement
between the parties.
1.2 These provisions form the basis of any future OKE business between the
seller and the purchaser and they shall preclude any other agreement.
1.3 Any inadvertent errors in sales brochures, price lists, quotation documents
or other documentation of the seller may be corrected by the seller without him
being held responsible for damage or losses based on these errors. The
present Terms & Conditions of Sale shall only apply to businesspersons.

2. Purchase order and quotation documents

2.1 Quantity, quality and description as well as any specification of the goods
shall conform to the seller's offer (if accepted by the purchaser) or the
purchaser's order (if accepted by the seller). All sales documents,
specifications and price lists must be treated as strictly confidential and may
not be made available to third parties.
2.2 Regarding the accuracy of the purchase order, the ordering party shall
bear responsibility for sending any required information regarding the goods
ordered to the seller within an approporate time so that the purchase order
can be executed in accordance with the contract.
2.3 If the goods must be manufactured or otherwise handled or processed
by the seller and the ordering party has presented a specification for this,
the ordering party must indemnify the supplier against any loss, damage,
costs or other expenses of the supplier that the supplier must pay or is
prepared to pay because the contractual handling or processing of the goods
has turned out to be a breach of a patent, copyright, trademark or any other
property right by a third party due to the specification by the ordering party.
2.4 The seller reserves the right to modify the description of the goods with
regard to the specification to the extent that statutory requirements must be
considered, unless a deterioration of the order in terms of quality and
servicability occurs due to this change.

3. Purchase price

3.1 The purchase price shall be the price stated by the seller.
3.2 The seller reserves the right to raise the price of the goods after notifying
the purchaser in good time and before executing the order as may be
necessary due to the price development that is generally out of control
(such as for example fluctuations, currency regulations, customs changes,
a clear increase in material or manufacturing costs) or due to a change of
suppliers.
3.3 Unless stated otherwise in the offer, or unless agreed otherwise in writing
between the seller and the purchaser, all prices stated by the seller are stated
on the basis of "ex works". If the seller is prepared to deliver the goods to other
places, the purchaser must bear the costs for transport, packaging and
insurance.
3.4 Prices are exclusive of VAT, which the purchaser must pay additionally to
the seller.

4. Terms of payment

4.1 Unless contrary terms of payment are stated on the invoice, the
purchaser must pay the purchase price within 30 days of the invoice date.
4.2 Payments shall only be made through bank transfer of cheque payment;
bills of exchange are not recognized as perfomance of the payment
obligation.
4.3 It may be agreed between the contracting parties that the purchaser must
open a letter of credit through its bank (or any other bank acceptable for the
seller). In such particular case, it is stipulated that the opening of a letter of
credit will be carried out in conformity with the Standard Guidelines and
Customs for Letters of Credit [Allgemeine Richtlinien und Gebruche fr
Dokumenntenakkreditive], revised version 1993, ICC publication no. 500.
4.4 If the purchaser fails to comply with its payment obligation on the due
date, the seller may - without waiving any further rights and claims to which
it is entitled - at his discretion:
terminate the contract or suspend further deliveries to the purchaser; or
charge interest to the purchaser on the unpaid amount at 7% p.a. above
the respective reference rate of the European Central Bank until the amount
has been paid finally and in full. The purchaser is entitled to prove that no or
lesser damage or loss has been incurred as a consequence of the delay in
delivery.

5. Delivery of goods

5.1 The delivery of goods shall be effected in such a way that the seller
accepts the goods at the business premises of the seller, that the goods
are made available for collection, or, if a different place of delivery was agreed
with the seller, by delivery of the goods to such place.
5.2 Where bulk articles are delivered, the seller may deliver up to 3% more or
less of the quantity of goods without having to adjust its purchase price, and
it is agreed that the quantity of goods delivered in such a way shall be
considered as being in accordance with the contract.
5.3 The purchaser may only assert claims for damages for non-performance
if the delay in delivery was based on intent or gross negligence, or if a
material contractual obligation was breached by the seller through (ordinary)
fault.
5.4 If the purchaser is in delay in acceptance on the due date, he must still
pay the purchase price. In such case, the seller shall effect the storage at the
risk and expense of the purchaser At the request of the seller, the purchaser
shall insure the goods at the expense of the purchaser.

6. Passing of risk

The risk of damage or loss of the goods shall pass to the purchaser as follows:

• If the goods are not delivered to the seller's business premises, at the time
  of the handing over the goods or, if the purchaser is in delay in acceptance,
  at the time in which the seller offers to hand over the goods.
• If the goods are delivered to the seller's business premises ("ex works",
  Incoterms 2000) at the time in which the seller informs the purchaser that the
  goods are ready for collection.

7. Retention of title

7.1 Notwithstanding the delivery and the passing of risk or other provisions of
these terms and conditons of delivery, title to the goods shall not pass to the
purchaser until the entire purchase price has been paid.
7.2 The seller has the right to demand the return of the goods, sell these
elsewhere or dispose of them in any other way until the purchase price has
been paid in full.
7.3 Until the goods have been paid in full, the purchaser must hold the goods
in trust for the seller, keep the goods safely separately from his property and
that of third parties, and store the goods held subject to retention of title in
proper form, safeguard and insure these and identify them as the property of
the seller.
Until complete payment, the purchaser may use or resell the goods in the
ordinary course of business; however it must keep any remuneration for these
(including any insurance payments) for the seller and keep the money
separately from its assets and those of third parties.
7.4 If the goods have been processed and the processing is also carried out
with parts to which the seller retaining title to the goods does not have title, the
seller retaining title to the goods shall acquire a corresponding part-ownership.
The same shall apply if the seller's goods are mingled with those of others.
7.5 In the event of attachments or other encroachments by third parties, the
purchaser must notify the seller without delay so that the seller can bring an
action in accordance with section 771 of the German Code of Civil Procedure
(ZPO). If the purchaser fails to comply with this duty, he shall be liable for the
damage incurred.
7.6 The seller undertakes to release the securities to which he is entitled at
the request of the purchaser to the extent that the realizable value of the
securities exceeds the receivables to which the seller is entitled. The choice of
the securities to be released shall be made by the seller.

8. Warranty and exclusion of liability

8.1 The purchaser must inspect the goods in terms of sections 377 of the
German Commercial Code (HGB) and 378 HGB and, if applicable, rise any
complaints in respect of defects.
8.2 The seller warrants that the goods delivered are free of material and
processing errors, are within specifications and, if the design is specified by
the purchaser, do not contain any design errors and conform to the
requirements of the purchaser.
8.3 The seller assumes no responsibility that the goods are fit for a certain
purpose, unless it has expressly consented to such liability.
8.4 The seller's liability is assumed subject to the following conditions: for
defects of the goods attributable to a description of the goods or specification
by the purchaser, the seller assumes no responsibility;
the seller assumes no responsibility for the defectiveness of the goods if the
purchase price due has not been paid by the due date;
the seller's responsibility shall not apply to parts, material or other items of
equipment that were manufactured by the purchaser or on its behalf, unless
the manufacturer of these parts assumes responsibility towards the seller.
This warranty shall not apply to product errors that arise due to defective
installation or use, erroneous use, negligence or other reasons.
An exclusion of liability of the seller shall not apply if a cause of a defect is
attributable to intent or gross negligence or if other material contractual
obligations have been breached.
8.5 The warranty obligation shall be six months, caclulated from the passing
of risk. The purchaser may demand replacement goods or the repair or a price
reduction if this is stipulated in the specific individual contract.
In the event of a defect of the item of sale for which the seller is responsible
and the seller is notified, the seller is entitled to a cost-free delivery of
replacement goods or remedy of the defect. If the seller is not prepared or in a
position to remedy the defect or deliver replacement goods, the purchaser is
entitled, at his discretion, to demand withdrawal from the contract (rescision
of the contract) or a reduction (decrease in the purchase price).

9. Other provisions

9.1 The seller is entitled to change and improve the goods without having to
inform the purchaser of this beforhand, if the change or improvement does not
burden or deteriorate the form or the function of the goods in the long-term.
9.2 These provisions shall replace all other prior agreements that the
contracting parties have made in writing or verbally and which shall become
ineffective upon the signing of the present Terms & Conditions.
9.3 These Terms & Conditions shall not be made available to any third party
without the prior written consent of the other contracting parties.
9.4 Each contracting party shall bear its own costs for the implementation of this
agreement.

10. Applicable law, Jurisdiction

10.1 This agreement is sunject to German law and both parties hereby declare
that they agree to the exclusive competence of the place of jurisdiction at the
place of business of the seller.
10.2 The seller has the right also to bring an action at the court competent for
the purchaser or at any other court that may be competent according to
national or international law.

11. Severability

• Should one of the above contractual provisions be or become ineffective,
  the remaining provisions shall remain in full effect.
• Should one of the above contractual provisions be or become ineffective,
  the parties will replace such provision by means of renegotiation.

 

Version: June 2008