I. Validity of the General Terms and Conditions of Sale

1. These General Terms and Conditions of Sale shall apply to the present and all subsequent contracts with domestic and exclusively commercial customers of Gebr. Echtermann GmbH & Co. KG – hereinafter referred to as Echtermann – which are concluded from January 1, 2015 onwards and whose main object is the delivery of goods to the customer. Any additional obligations assumed by Echtermann shall not affect the validity of these General Terms and Conditions of Sale.

2. Conflicting or deviating terms and conditions of the customer shall not be binding on Echtermann, even if Echtermann does not object to them or provides services or accepts services from the customer without reservation. Similarly, Echtermann shall not be bound if the customer’s terms and conditions deviate from statutory provisions irrespective of the content of these General Terms and Conditions of Sale.

3. These General Terms and Conditions of Sale are designed for contracts that do not fall under the special provisions of the sale of consumer goods (§§ 474 ff. BGB). Should this assumption not apply, the customer shall inform Echtermann immediately and in writing in each individual case; otherwise, Echtermann’s “General Terms and Conditions of Sale for the Sale of Consumer Goods”, which shall be sent on request, shall apply instead of these General Terms and Conditions of Sale.

4. These General Terms and Conditions of Sale do not apply if the customer is a consumer within the meaning of § 13 BGB (German Civil Code).

5. For commercial customers only. All prices quoted are exclusive of VAT.

6 Echtermann’s prices are ex works, excluding packaging and other shipping and transportation costs.

7. Prices are based on the cost factors (material and raw material prices, wages and salaries, manufacturing and transportation costs) and the quantities available at the time of conclusion of the contract. If there are at least 4 months between the conclusion of the contract and the agreed delivery date and if the total costs have increased by at least 5% during this period, we are entitled to make a corresponding price increase to compensate for the stated cost increase.

8. The price quoted shall be increased by the statutory turnover tax owed by the customer within the European Community for this turnover.

9. For small orders within the EU with a net invoice value of less than EURO 50.00, we charge a handling fee of EURO 10.00 per small order. In non-EU countries, the processing fees and the minimum order quantity depend on the shipping and administrative costs for the respective country.

II Conclusion of the contract

1. The customer shall be obliged to notify Echtermann in writing prior to conclusion of the contract if the goods to be delivered are not to be suitable exclusively for normal use or if the customer assumes a certain suitability for use or bases its expectations of quality on public statements, advertising statements or other circumstances outside the specific conclusion of the contract, or the goods are used under unusual conditions or conditions that pose a particular health, safety or environmental risk or that require increased stress, or if the contract may involve atypical possibilities of damage or unusual amounts of damage of which the customer is or should be aware.

2. Orders of the customer shall be made in writing. If the customer’s order deviates from Echtermann’s proposals or offer, the customer shall highlight the deviations as such. The rules for the conclusion of contracts in electronic business transactions pursuant to Section 312 e (1) sentence 1 nos. 1 to 3 BGB shall not apply.

3. All orders, in particular those placed by employees of Echtermann, shall only become effective upon written order confirmation by Echtermann. The actual delivery of the ordered goods, other behavior of or silence on the part of Echtermann shall not justify the customer’s trust in the conclusion of the contract. Echtermann may issue the written order confirmation up to the expiry of fourteen (14) calendar days after the customer’s order has been received by Echtermann.

4. The written order confirmation from Echtermann shall be deemed to have been received in good time if it is received by the customer within seven (7) calendar days of its date of issue. The customer shall inform Echtermann immediately if the written order confirmation is received late.

5. The written order confirmation of Echtermann shall be decisive for the scope of the content of the contract and shall also bring about the conclusion of a contract if, apart from the type of goods, price and delivery quantity, it deviates from the customer’s declarations in any other way, in particular also with regard to the exclusive validity of these General Terms and Conditions of Sale. Special requests of the customer, namely special usage and quality expectations of the customer, guarantees or other assurances with regard to the goods or the execution of the contract therefore require express written confirmation by Echtermann in any case. The contract shall only not be concluded if the customer complains in writing that Echtermann’s order confirmation does not correspond in every respect to the customer’s declarations, specifies the deviations in writing and the complaint is received by Echtermann within a short period of time, at the latest seven (7) calendar days after the written order confirmation has been received by the customer.

6. Confirmations made by the customer shall remain without effect without any objection by Echtermann being required. In particular, neither the actual delivery of the goods ordered, any other conduct on the part of Echtermann or silence on the part of Echtermann shall justify any reliance by the customer on the validity of his confirmation.

7. The employees, commercial agents and other sales intermediaries of Echtermann are not authorized to dispense with the requirement of written order confirmation by Echtermann or to make promises that deviate in content or to declare guarantees. Amendments to the concluded contract shall always require written confirmation by Echtermann.

III. Obligations of the Echtermann company

1. Echtermann shall deliver the goods specified in the written order confirmation and transfer ownership. If the goods to be delivered require further specification, Echtermann shall make the specification taking into account its own interests and those of the customer which are recognizable and justified for Echtermann. Echtermann shall not be obliged to provide services which are not listed in Echtermann’s written order confirmation or in these General Terms and Conditions of Sale; in particular, Echtermann shall not be obliged to provide planning services, to hand over documents not expressly agreed in writing or to provide information or accessories, to install additional protective devices, to provide assembly instructions, to carry out assembly work or to advise the customer.

2. Echtermann shall be solely liable to the customer under the contract concluded with the customer. Third parties not involved in the conclusion of the contract, in particular customers of the customer, shall not be entitled to demand delivery to themselves or to assert other claims of a contractual nature against Echtermann. The customer’s responsibility for receipt shall remain in force even if he assigns claims to third parties. The customer shall indemnify Echtermann without restriction against all claims asserted by third parties against Echtermann on the basis of the contract concluded with the customer.

3. Echtermann shall be obliged to deliver goods of average type and quality, taking into account the provisions in sections II.-1. and II.-5. and taking into account customary tolerances with regard to type, quantity and quality. If the goods cannot be delivered in the condition offered at the time of conclusion of the contract because technical improvements have been made to series products, Echtermann shall be entitled to deliver the improved version. Echtermann shall be entitled to make partial deliveries and to invoice them separately.

4. Echtermann shall make the goods available for collection by the customer at the agreed delivery time EXW (Incoterms 2010) at the delivery address specified in the written order confirmation and – if no such address is specified – at the branch office in Iserlohn in the packaging customary at Echtermann. Prior separation or marking of the goods or notification of the customer of their availability shall not be required. Echtermann shall under no circumstances, even if other Incoterms are used, be obliged to inform the customer of the delivery, to inspect the goods on the occasion of delivery to ensure that they comply with the contract, to organize the transport of the goods or to insure the goods. The agreement of other Incoterms or of clauses such as “delivery free…” or similar shall only result in a deviating regulation of the transportation and the transportation costs; in all other respects, the provisions set out in these General Terms and Conditions of Sale shall apply.

5. Agreed delivery periods or delivery dates shall be subject to the customer providing any documents, approvals or releases to be procured in good time, making down payments as agreed and fulfilling all other obligations incumbent upon him in good time. Otherwise, agreed delivery periods shall commence on the date of Echtermann’s written order confirmation. Echtermann shall be entitled to deliver before the agreed time or to determine the time of delivery within the relevant delivery period.

6. Echtermann shall be entitled to fulfill contractual obligations after the scheduled date if the customer is informed of the missed deadline and a period for subsequent performance is communicated to him. Under these conditions, Echtermann shall also be entitled to make several attempts at subsequent performance. The customer may object to the subsequent performance within a reasonable period of time if the subsequent performance is unreasonable. Echtermann shall reimburse the customer’s demonstrably necessary additional expenses incurred as a result of the deadline being exceeded, insofar as Echtermann is liable for damages in accordance with the provisions in Section VII.

7. Irrespective of whether transportation is carried out by Echtermann, by the customer or by third parties, the risk shall pass to the customer as soon as loading begins or the customer fails to comply with the obligation to accept the goods, even if the goods are not clearly marked. The loading of the goods is one of the customer’s obligations. The agreement of other Incoterms or of clauses such as “delivery free…” or similar shall only result in a deviating regulation of the transportation and the transportation costs; in all other respects, the regulations made in these General Terms and Conditions of Sale shall apply.

8. Echtermann shall not be obliged to provide any certificates or other documents not expressly agreed and shall in no case be responsible for fulfilling the obligations associated with placing the goods on the market outside Germany.

9. Without waiving further legal rights, Echtermann shall be entitled to plead uncertainty in accordance with § 321 BGB as long as Echtermann is concerned that the customer will not fulfill his obligations in whole or in part in accordance with the contract. In particular, Echtermann shall be entitled to raise the defense of uncertainty if the customer insufficiently fulfills its obligations towards Echtermann or third parties or is slow to pay or if the limit set by a credit insurer has been exceeded or will be exceeded with the pending delivery. Instead of the objection, Echtermann may make future deliveries, including those already confirmed, dependent on the customer making advance payment. Echtermann shall not be obliged to continue the services as long as and to the extent that services rendered by the customer to avert the defense do not provide adequate security or could be contestable.

10. In the event of circumstances beyond Echtermann’s control or unforeseen circumstances occurring at Echtermann or at Echtermann’s subcontractors after conclusion of the contract, e.g. shortage of raw materials and energy; miscasting; failure of models, dies, molds or machines required for production, industrial disputes, cases of force majeure or circumstances for which Echtermann is not responsible, the delivery time or delivery date shall be postponed by the duration of the hindrance.

11. Unless otherwise agreed, blanket and call-off orders must be called off within 12 months, whereby the delivery time may not exceed 3 months. If the customer fails to comply with these deadlines, Echtermann shall be entitled either to cancel the order and claim damages for non-performance or to dispatch and invoice the overdue goods. The customer shall grant Echtermann a period of at least 3 weeks between the individual call-off orders.

IV. Obligations of the customer

1. Notwithstanding any further obligations of the customer to secure or prepare payment, the purchase price shall be due for payment on the date specified in the written order confirmation and – if no such date is specified – upon issue of the invoice and shall be paid by the customer. Payment terms granted shall lapse and outstanding receivables shall become due for payment immediately if the customer’s buyers pay for goods delivered by Echtermann which are subject to retention of title (clause VIII.-5.), if insolvency proceedings are instituted against the customer’s assets, if the customer fails to meet material obligations due to Echtermann or third parties without providing a justifiable reason, if the customer has provided inaccurate information about his creditworthiness or if the cover promised by a credit insurer is reduced for reasons for which Echtermann is not responsible.

2. The agreed purchase price shall cover the services incumbent on Echtermann. Echtermann’s usual packaging and shipping costs shall be shown and charged separately. The statutory value added tax shall be charged separately and shall be paid additionally by the customer.

3. Discount commitments shall be shown in each individual case in Echtermann’s written order confirmation and shall only apply on condition of timely and complete payment of all claims of Echtermann against the customer.

4. Payments shall be made in EURO without deduction and free of charges and costs via one of the banking institutions designated by Echtermann. The timeliness of the payment shall be determined by the unconditional credit entry on the bank account. Echtermann’s employees, commercial agents or other sales intermediaries are not authorized to accept payments.

5. Echtermann may, at its own discretion, set off incoming payments against claims existing against the customer by virtue of its own or assigned rights at the time of payment, irrespective of court jurisdiction.

6. The customer’s statutory rights to offset against Echtermann’s claims shall be excluded unless the counterclaim is based on the customer’s own right and has either been legally established or is due and undisputed. § Section 215 BGB shall not apply.

7. statutory rights of the customer to withhold payment or acceptance of the goods, to suspend other obligations incumbent on him and to raise objections or counterclaims shall be excluded, unless Echtermann has materially breached obligations due under the same contractual relationship despite written warning from the customer and has not offered adequate security. § Section 215 BGB shall not apply.

8. The customer shall be obliged to take delivery of the goods on the delivery date without claiming any additional time and at the delivery address specified in Clause III.-4. and to fulfill all obligations incumbent on him under the contract, these General Conditions of Sale, the rules of the ICC for the interpretation of Incoterms® 2010 and statutory provisions. The customer shall only be entitled to refuse acceptance of the goods if he withdraws from the contract in accordance with the provisions of clause VI.-1.

9. Insofar as this is not otherwise ensured, the customer shall, irrespective of statutory provisions, reuse, recycle or otherwise dispose of the goods delivered by Echtermann to the customer and the packaging at his own expense. Echtermann shall not be obliged to take back goods delivered to the customer or packaging material from the customer or third parties due to waste disposal regulations.

10. If an acceptance date has been agreed, or if the customer fails to meet this date for reasons for which he is responsible, acceptance shall be deemed to have been carried out without objection. If the customer is prevented from accepting the goods due to the circumstances mentioned in Clause III.-10., he shall be granted a reasonable extension of time for acceptance.

11. Transport insurance shall only be taken out by special agreement and at the expense of the customer.

12. If Echtermann’s packaging is exchangeable packaging as agreed, it must be returned to us immediately; otherwise we shall invoice the costs of replacement.

13. The following applies to domestic customers: Sales packaging within the meaning of the Packaging Ordinance can be disposed of via the Interseroh dual system. The following applies to transport packaging: The customer bears the costs for recycling. We are not obliged to take back third-party packaging

14. In the event of defective, incorrect or delayed material, the customer shall bear the costs and damages incurred by Echtermann as a result.

15. The customer shall not be entitled to make complaints as long as Echtermann complies with the tolerances resulting from the relevant standards or other commercial practice. Subject to other more favorable regulations, deviations of up to +/- 5% shall be deemed permissible for quantities or weights.

16. The weights and delivery quantities stated in Echtermann’s delivery bills and invoices shall be decisive for invoicing

V. Defective goods

1. Without waiving statutory exclusions or limitations of the seller’s responsibility, the goods are defective if the customer proves that the goods, taking into account the provisions in sections II.-1., II.-5. or III. at the time of the transfer of risk, noticeably deviate from the type, quantity, quality or suitability for use agreed in the written order confirmation or, in the absence of an agreement, from the quality customary in Germany or are obviously not suitable for the use customary in Germany. Overt as well as concealed defective deliveries are deliveries with material defects. Model, design or material changes that correspond to more recent technical findings do not constitute a material defect.

2. Without waiver of statutory exclusions or limitations of the seller’s responsibility, the goods are defective in title if the customer proves that the goods are not free of rights or claims of third parties enforceable in Germany at the time of the transfer of risk. Without waiving any further legal requirements, rights or claims of third parties based on industrial or other intellectual property shall only constitute a defect of title if the rights are registered, published and final in Germany and exclude the contractual use of the goods in Germany.

3. Unless Echtermann’s written order confirmation expressly states otherwise, Echtermann shall in particular not be responsible for ensuring that the goods are suitable for other than normal use, deviate from the usual quality or meet further expectations of the customer or are free from rights or claims of third parties outside Germany. Echtermann shall not be liable for defects that occur after the time of transfer of risk. If the customer undertakes attempts to remedy defects himself or through third parties without the consent of Echtermann, Echtermann shall be released from the warranty obligation unless these are carried out properly.

4. Guarantees or assurances requested by the customer must always be specifically identified as such in the written order confirmation, even in the case of follow-up transactions. In particular, keyword-like designations, reference to generally recognized standards, the use of trademarks or quality marks or the submission of samples or specimens shall not in themselves constitute the assumption of a guarantee or assurance. Echtermann’s employees, commercial agents or other sales intermediaries are not authorized to declare guarantees or assurances or to provide information on special usability or the economic efficiency of the goods.

5. The customer shall be obliged vis-à-vis Echtermann to inspect each individual delivery immediately and in every respect for recognizable and typical deviations of a qualitative, quantitative and other nature, for compliance with the product law regulations applicable to the goods and otherwise in accordance with the statutory provisions.

6. Without waiving the customer’s statutory obligations to notify Echtermann immediately, the customer shall be obliged to notify Echtermann of any material defect or defect of title within twelve (12) months at the latest after the goods have actually been handed over to him. The notification shall be made in writing and directly to Echtermann and shall be so precise that Echtermann can initiate remedial measures and secure recourse claims against upstream suppliers without further inquiry from the customer, and shall otherwise comply with the statutory provisions. At the same time, the customer must provide evidence of the date of purchase. At the same time, the customer must prove the date of purchase. Echtermann’s express consent is required for the assumption of costs for repairs or installation expenses at the end user. Until the complaint has been clarified, rejected goods may not be further processed. Echtermann shall be given the opportunity to inspect any defects complained about on site; otherwise the goods complained about shall be sent to us on request.

Echtermann’s employees, commercial agents or other sales intermediaries are not authorized to accept notices of defects or make warranty statements outside Echtermann’s business premises.

7. After proper notification in accordance with clause V.-6. the customer may assert the remedies provided for in these General Terms and Conditions of Sale. Unless otherwise confirmed in writing by Echtermann, the customer shall have no further claims or claims of a non-contractual nature for breach of the obligation to deliver defect-free goods. In the event of improper notification, the customer may only assert legal remedies if Echtermann has fraudulently concealed the defect. Statements by Echtermann regarding defects shall only serve to provide factual clarification, but in particular shall not constitute a waiver of the requirement of proper notification.

8. The customer shall not be entitled to any legal remedies due to the delivery of defective goods insofar as he is responsible for the quality or suitability for use of the goods which are not the subject of the agreements made with Echtermann, or the customer modifies the validity of the legally relevant provisions to the detriment of Echtermann in the business relations with his customers.

9. Insofar as the customer is entitled to legal remedies due to the delivery of defective goods in accordance with the provisions of these General Terms and Conditions of Sale, he shall be entitled to demand subsequent performance from Echtermann within a reasonable period of time after notification of a defect in accordance with the statutory provisions. Echtermann shall bear the necessary expenses incurred for the subsequent performance insofar as these are not increased as a result of a change of location or the change of other avoidable circumstances which have occurred after the customer became aware or must have become aware of the defect and Echtermann is liable for damages in accordance with the provisions in Section VII. In the event that the subsequent performance finally fails, is not possible or is not carried out within a reasonable period of time, the customer shall be entitled, irrespective of other legal remedies provided for in these General Terms and Conditions of Sale, in accordance with the statutory provisions, to reduce the price or, after setting a deadline and threatening refusal, to withdraw from the contract within a preclusive period of four weeks after expiry of the deadline. Irrespective of the customer’s legal remedies, Echtermann shall always be entitled to repair or replace defective goods in accordance with the provision in Section III.-6.

10. Any claims of the customer due to delivery of defective goods shall become time-barred one year after the start of the statutory limitation period. Claims for fraudulent and intentional breach of contract remain unaffected. Replacement delivery or rectification of defects shall not lead to new limitation periods.

11. Notwithstanding the limitation period for claims due to the delivery of defective goods, Echtermann shall provide the customer with spare parts free of charge in the 2nd year after the statutory limitation period begins if the customer would otherwise be entitled to legal remedies due to defective delivery in accordance with the provisions set out in Chapter V. of these General Terms and Conditions of Sale and the material defect is remedied with the spare part. The spare part shall be made available at the delivery address specified in the written order confirmation, alternatively at the branch office in Iserlohn. The customer shall bear all expenses, including expenses for the installation of the spare part. Echtermann may, at its own discretion, demand the return of the defective part from the customer.

12. Samples of the goods provided to the customer are reference samples. Their provision still entitles us to deliver in accordance with customary commercial tolerances. Sample deliveries are not a guarantee of quality within the meaning of § 494 BGB.

13. Furthermore, Echtermann shall only be liable for consequential damages due to the absence of a warranted characteristic if the purpose of the warranty is to protect the customer against such damages.

14. Separately marked goods may be subject to an extended warranty period. Our Lifetime Warranty (15 years) covers defects in materials and workmanship of fittings when used under normal, proper conditions and in accordance with our instructions for use and installation from the date of invoice. Proof of purchase must be provided to request repairs or replacement parts under warranty due to defects in materials and workmanship.

Our Lifetime Warranty does not cover damage due to normal wear and tear, damage due to accidents, misuse, negligence, fire, improper cleaning agents (e.g. alkalis and acids), other external causes or damage due to failure to follow our instructions for use and installation, damage due to use with another product, damage due to maintenance or repair by an unauthorized person, theft of the product. Natural color and material degradation over a longer period of time and a longer period of use are not covered by the Lifetime Warranty. Wear parts whose handling has a significant influence on their durability, such as seals, upper parts, cartridges and hoses, are generally excluded.

VI. Resignation

1. In addition to the provision in clause V.-9., the customer shall be entitled to withdraw from the contract in compliance with the relevant statutory provisions if the services incumbent on Echtermann have become impossible, Echtermann is in default with the fulfillment of main contractual obligations or has otherwise materially breached obligations arising from this contract and Echtermann is responsible for the default or breach of duty in accordance with clause VII.-1.-c). Without waiving any further legal requirements, a separate written request addressed directly to Echtermann after the due date to perform the service within a reasonable period of time shall always be required to bring about default, even in the case of a calendar-based performance period. The customer shall declare the withdrawal from the contract in writing and directly to Echtermann within a reasonable period of time after the occurrence of the event entitling the customer to withdraw from the contract.

2. Without waiving any further legal rights, Echtermann shall be entitled to withdraw from the contract without replacement if the customer objects to the validity of these General Terms and Conditions of Sale, if the special provisions of the sale of consumer goods (§§ 474 et seq. BGB) apply, if Echtermann’s written order confirmation is received by the customer later than fourteen (14) calendar days after its date of issue for reasons for which Echtermann is not responsible, if an application is made to open insolvency proceedings against the customer’s assets, if the customer fails to meet material obligations due to Echtermann or to third parties without providing a justifiable reason, if the customer provides inaccurate information about his creditworthiness, if the cover promised by a credit insurer is reduced for reasons for which Echtermann is not responsible, if Echtermann itself is not supplied correctly or on time through no fault of its own or if Echtermann is no longer able to meet its performance obligations for other reasons by means which are reasonable taking into account its own legitimate interests and those of the customer recognizable at the time of conclusion of the contract and in particular the agreed consideration.

VII. Compensation for damages

1. With the exception of liability under the Product Liability Act, due to fraudulent concealment of a defect, due to the assumption of a guarantee for the quality of an item or for damages resulting from culpable injury to life, body or health, Echtermann shall only be obliged to pay compensation for damages due to the breach of obligations resulting from the contract concluded with the customer and/or the contractual negotiations conducted with the customer, without waiving the statutory requirements, in accordance with the following provisions. The following provisions shall also apply in the event of a breach of warranty obligations and in the event of default:

a) Compensation for damages due to the delivery of defective goods is excluded if the defect is not significant.

b) The customer is primarily obliged in accordance with the provisions in clauses III.-6. to take advantage of offers of subsequent performance or in accordance with the provisions in clauses V. and VI. to take advantage of the legal remedies regulated therein and can only demand compensation for damages due to remaining disadvantages, but in no case instead of other legal remedies.

c) Without waiving statutory exclusions or limitations of liability, Echtermann shall only be liable in the event of culpable breach of material contractual obligations and in the event of intentional or grossly negligent breach of other contractual obligations incumbent on the customer.

d) In the event of liability, Echtermann shall provide compensation, taking into account the limits under lit. e) the proven damage suffered by the customer to the extent that it was foreseeable for Echtermann at the time of conclusion of the contract as a consequence of the breach of duty with regard to the occurrence and amount of damage and could not have been avoided by the customer.

e) Echtermann shall not be liable for loss of profit and moral prejudice. Otherwise, the amount of damages for delay shall be limited to 0.5% for each full week of delay, up to a maximum of 5%, and for other breaches of duty to 200% of the value of the non-contractual part of the performance. This paragraph shall not apply in the event of gross negligence on the part of Echtermann or its vicarious agents.

f) Irrespective of compliance with the statutory provisions and the provisions provided for in these General Terms and Conditions of Sale, the customer may only claim damages in lieu of performance after he has threatened Echtermann with refusal of performance within a reasonable period of time after the due date and, if performance is nevertheless not rendered, has finally refused performance vis-à-vis Echtermann within a reasonable period of time after the threat of refusal.

g) Echtermann shall be liable to pay damages for breach of contractual and/or pre-contractual obligations owed to the customer exclusively in accordance with the provisions of these General Terms and Conditions of Sale. Any recourse to competing bases for claims, in particular of a non-contractual nature, is excluded. Equally excluded is any recourse against Echtermann’s executive bodies, employees, workers, staff, representatives and/or vicarious agents for breach of contractual obligations incumbent on Echtermann.

h) Insofar as Echtermann is not liable due to intent or the customer’s claim has not previously become time-barred, a preclusion period of 6 months shall apply to the filing of claims for damages, beginning with the rejection of the claim for damages by Echtermann.

i) The above provisions on Echtermann’s liability shall also apply to claims by the customer for reimbursement of expenses.

2. Notwithstanding any further legal or contractual claims of Echtermann, the customer shall be obliged to pay Echtermann the following damages:

a) In the event that payment is not received on time, the customer shall reimburse the reasonable costs of judicial and extrajudicial legal action as well as interest at a rate of 9 percentage points above the prime rate of the Deutsche Bundesbank.

b) Subject to proof by the customer that no damage or only significantly less damage has been incurred, Echtermann shall be entitled, in the event of a delay in acceptance or an agreed but non-receipt of the goods by the customer after the expiry without notice of a reasonable grace period set by Echtermann, to demand liquidated damages in the amount of 15% of the respective delivery value, but at least fifty (50) EURO, without proof.

3. The customer is obliged to limit its liability for damages in business relations with its customers in terms of reason and amount within the scope of what is legally possible and customary in the industry.

4. Section 348 HGB (contractual penalty) shall not apply.

VIII Retention of title

1. Goods delivered shall remain the property of Echtermann until full settlement of all claims of Echtermann against the customer, irrespective of their legal basis, including principal and ancillary claims which only become due in the future. In the case of current accounts, the retention of title shall apply to the respective balance.

2. During the existence of the retention of title, the customer shall grant Echtermann’s employees access to the goods subject to retention of title at any time during normal business hours. The customer shall be obliged to insure the goods subject to retention of title against theft, damage and destruction and, at Echtermann’s request, to store the goods separately at its own expense or to demarcate them appropriately, to clearly mark them as Echtermann’s property and to take all measures necessary to comprehensively secure the retention of title. The customer hereby assigns to Echtermann by way of security, in full and irrevocably, the claims arising against the insurance companies; Echtermann accepts the assignment.

3. During the existence of the retention of title, the customer shall inform Echtermann immediately in writing if a third party should assert claims to or rights to the goods subject to retention of title or the claims assigned to Echtermann in accordance with the provisions on retention of title, and shall support Echtermann free of charge in pursuing its interests. If a third party acquires rights to the goods subject to retention of title during the existence of the retention of title, the customer’s claims against the third party with all rights are hereby irrevocably assigned to Echtermann by way of security; Echtermann accepts the assignment.

4. The customer may sell the goods subject to retention of title in the ordinary course of business and only on condition that he is not in default of payment and that the customer’s payment to the customer is not due before the date on which the customer has to pay the price to Echtermann. The customer shall not be entitled to dispose of the goods in any other way (e.g. transfer by way of security, pledging, etc.). The customer hereby assigns to Echtermann by way of security, in full and irrevocably, the claims to which he is entitled against his customers from the sale of the goods subject to retention of title, together with all ancillary rights. If the customer includes the claims from a sale in an existing current account relationship with his customers, he hereby assigns the current account claims resulting after the balancing to Echtermann by way of security, in full and irrevocably. Echtermann accepts the assignments.

5. The customer shall remain authorized to collect claims assigned to Echtermann in trust for Echtermann as long as he is not in default of payment. The customer shall not be entitled to assign the claims to third parties. The customer shall keep incoming payments separately and forward them to Echtermann immediately, irrespective of any further payment terms granted by Echtermann, until Echtermann’s secured claims have been settled in full. If payment is made by bank transfer to the customer’s bank, the customer hereby irrevocably assigns to Echtermann the claims to which he is entitled against his bank. If the customer receives bills of exchange for the settlement of claims against third parties, he hereby irrevocably assigns to Echtermann the claims to which he is entitled against the credit institution in the event of discounting of the bill of exchange. Echtermann accepts the assignment.

6. Any connection of the goods with land shall only be temporary. The handling and processing of the goods shall be carried out for Echtermann as manufacturer within the meaning of § 950 BGB, without any liabilities arising for Echtermann from this. If the goods delivered by Echtermann are mixed, blended or combined with other items in such a way that Echtermann’s ownership expires by operation of law, the customer hereby transfers his ownership or co-ownership rights to the new item to Echtermann and shall hold it in trust for Echtermann free of charge.

7. If necessary, the customer shall inquire to what extent the goods are still subject to retention of title. Echtermann shall not be obliged to quantify the extent of the retention of title in response to payments without being requested to do so. If goods subject to retention of title which have not yet been paid in full are in the customer’s custody, Echtermann shall release the goods at the customer’s request if the invoice value of the goods exceeds the sum of the outstanding claims by more than 20% and there are no rights of separation in favor of Echtermann in respect of the goods. The same shall apply insofar as claims against third parties have taken the place of the goods subject to retention of title and these are asserted by Echtermann in its own name. Otherwise, Echtermann shall release securities at the customer’s request if the market price of the securities exceeds the sum of the secured claims by more than 50% plus the value added tax incurred in the realization.

8. If goods subject to retention of title which have not yet been paid for in full are in the customer’s custody and insolvency proceedings are applied for against the customer’s assets or the customer fails to meet its obligations due to Echtermann or third parties without providing a justifiable reason, Echtermann may withdraw the customer’s right of possession and demand the return of the goods without withdrawing from the contract. Echtermann shall not be entitled to demand the return of the goods if the insolvency administrator decides to fulfill the contract and the price has been paid.

9. In the event of withdrawal from the contract, in particular due to default in payment by the customer, Echtermann shall be entitled to sell the goods in the open market and to satisfy its claims from the proceeds. Irrespective of other rights to which Echtermann is entitled, the customer shall be obliged to reimburse Echtermann for the expenses incurred in concluding the contract, processing the contract to date and terminating the contract as well as the costs of retrieving the goods and to pay a usage fee of 5.0% of the value of the goods for each month or part thereof since the transfer of risk.

IX. Other regulations

1. Neither a handwritten signature nor an electronic signature is required to comply with the written form requirement. Notifications by fax or e-mail satisfy the written form requirement in the same way as other text forms, without the conclusion of the declaration having to be specifically indicated.

2. The data received about the customer in connection with the business relationship shall be processed by Echtermann in accordance with the Federal Data Protection Act.

3. The customer shall inform Echtermann immediately in writing if authorities are involved or become active in connection with the goods. The customer shall also continue to observe the delivered goods on the market and inform Echtermann immediately in writing if there is any concern that the goods could pose a risk to third parties.

4. Without waiver by Echtermann of further claims, the customer shall indemnify Echtermann without limitation against all claims of third parties which are asserted against Echtermann on the basis of product liability or similar provisions, insofar as the liability is based on circumstances which – such as the presentation of the product – were set by the customer or other third parties without the express and written consent of Echtermann. The indemnification shall in particular also include the reimbursement of expenses incurred by Echtermann and shall be granted by the customer waiving further conditions or other objections, in particular waiving compliance with monitoring and recall obligations and waiving the defense of the statute of limitations.

5. Echtermann reserves all property rights, copyrights, other industrial property rights and know-how rights to illustrations, drawings, calculations, planning documents and other documents as well as software provided by Echtermann in physical or electronic form. They must be kept secret from third parties and may only be used for the execution of the respective order. Any use of such data and illustrations for the purpose of sales promotion by the customer or third parties shall always require the written consent of Echtermann. Echtermann must be notified immediately of the customer’s knowledge of the use of such data and images, irrespective of the knowledge of this approval.

6. Notwithstanding any further statutory provisions, the suspension of the limitation period shall also end if the negotiations suspending the limitation period are not continued for more than four weeks. A restart of the limitation period for the customer’s claims shall in any case require express written confirmation from Echtermann.

7. returns of goods that occur through no fault of our own (e.g. incorrect order),

are charged at a flat rate of currently 15% of the net value of the goods per shipment. A credit note will only be issued after prior agreement and if the goods are sent free of freight, packaging and defects. Custom-made products are excluded from return.

8. Tools, molds, forms and dies, etc. remain our sole property, even if the customer pays a share of the costs for their use.

9. If the customer provides us with tools, molds, forms and dies, etc., these are to be sent to us free of charge. We shall only accept liability for their loss or deterioration and any resulting damage insofar as we have insurance cover for this or we are liable for gross negligence or intent.

10. If norms and standards are specified in our order confirmation, the edition valid on the date of issue of the order confirmation shall apply in case of doubt.

11. If deliveries are made according to drawings or other information provided by the customer and third party rights, in particular industrial property rights, are infringed as a result, the customer shall indemnify us against all resulting claims on first demand, unless we are involved in the creation of the claim through intent or gross negligence, in which case § 830, § 840, § 254 BGB shall apply to the distribution of damages between the customer and us.

12. Processing and material suggestions from Echtermann, as well as other information and recommendations, are provided to the best of our knowledge, but to the exclusion of liability. Liability for intent and gross negligence remains unaffected.

13. Furthermore, Echtermann shall be entitled to withhold pending deliveries within the scope of its business relationship until the customer’s payment obligations for previous deliveries have been met in full.

X. General contractual bases

1. The place of delivery results from the provision in III.-4. of these General Terms and Conditions of Sale. The place of payment and performance for all other obligations arising from the legal relationship between Echtermann and the customer shall be Iserlohn. These provisions shall also apply if Echtermann performs services for the customer at another location or if services rendered are to be reversed. The agreement of other clauses of the Incoterms or other delivery clauses shall only result in a deviating regulation of transportation and transportation costs; otherwise the above rules shall apply.

2. The contractual and non-contractual legal relationships with the customer shall be governed exclusively by German law and the customs applicable in Germany. If trade terms are used, the Incoterms® 2010 of the International Chamber of Commerce shall apply in case of doubt, taking into account the provisions made in these General Terms and Conditions of Sale. Deviations from these contractual bases shall be based exclusively on the individual agreements made by Echtermann with the customer and these General Terms and Conditions of Sale.

3. All contractual and non-contractual disputes arising out of or in connection with contracts to which these General Terms and Conditions of Sale apply, including insolvency disputes, shall be finally settled in accordance with the Arbitration Rules of the German Institution of Arbitration (DIS) without recourse to the ordinary courts of law. The arbitration tribunal shall consist of three arbitrators and, in the case of disputes with a value in dispute of less than € 50,000, of one arbitrator. The place of arbitration shall be Cologne and the language shall be German. The jurisdiction of the arbitration tribunal shall in particular also exclude any statutory jurisdiction that is provided for due to a personal or factual connection. If this arbitration agreement is invalid or should become invalid, the local and international exclusive jurisdiction of the courts having jurisdiction for Iserlohn shall be agreed instead for the decision of all disputes. However, Echtermann shall be entitled to bring an action before the court having jurisdiction for Iserlohn, the courts at the customer’s place of business or other competent state courts instead of bringing an action before the arbitral tribunal.

4. Should provisions of these General Terms and Conditions of Sale be or become invalid in whole or in part, the remaining provisions shall remain valid. The parties are obliged to replace the invalid provision with a legally valid provision that comes as close as possible to the economic sense and purpose of the invalid provision.