OHARA GmbH

GENERAL TERMS AND CONDITIONS OF OHARA GmbH

1. Application

Ohara GmbH trades exclusively on the basis of these General Terms and Conditions. These Conditions shall apply on this and any subsequent contract. Conflicting Conditions are hereby expressly excluded.

2. Limited obligingness of the quotation

Offers on our website are subject to alteration and non-binding unless the offer contains an express confirmation. Completion of the order form by the Purchaser shall bind the Purchaser to the order for a period of one week. The contract is deemed concluded provided we have expressly confirmed the order within this week, or if the goods have been dispatched to the Purchaser within that time.

3. Place of Performance and Freight

1.) Unless otherwise agreed, all deliveries are ex works Hofheim. All costs of transport including costs of insurance of the appropriate means of transport are to be borne by the Purchaser. The Purchaser is entitled to chose a method of transport different from the one chosen by the Supplier, provided any additional costs incurred as a result are borne by the Purchaser.

2.) Delivery will be in the most appropriate and cost effective packaging.

4. Delivery

1.) Correct and punctual delivery of the Supplier is the prerequisite for compliance with his own delivery obligations. The Supplier shall not be liable for its inability to comply with its delivery obligations in the event of governmental orders, acts by supranational organisations, wars or natural catastrophes in the country of origin of the goods.

2.) In the event of industrial disputes and operational interruptions the contractual times for delivery will be extended automatically by the period of the interruption.

3.) In the event of subsequent changes to the contract which may influence the delivery dates these dates are automatically extended appropriately, unless otherwise agreed in writing.

4.) In the event that the Purchaser fails to comply with his own obligations regarding delivery, the time for delivery is extended appropriately.

5.) The Supplier is entitled to deliver by instalments. Deliveries of up to 10% of the contractually agreed amount shall be possible.

5. Price, Payment and Delay

1.) All prices are exclusive of any applicable value added tax.

2.) Unless otherwise agreed for individual orders, payment is due on delivery without deduction.

3.) Insofar as delivery has been agreed to be by instalments, payment of the agreed instalment price is due on each instalment delivery.

4.) In the event of late payment, the Purchaser agrees to pay interest at the rate of 8% above the base rate pursuant to paragraph 247 of the German Civil Code (BGB). The Supplier shall be entitled to exercise a right of refusal of delivery also when there has previously been late payment of deliveries.

5.) In the event of a substantial deterioration of the Purchaser's financial situation following the entering into this contract, the Supplier shall be entitled, at its choice, to set a time limit within which delivery shall be against payment only in respect of any remaining delivery obligations. In the event that the Purchaser fails to comply with its payment obligations within this time limit, the Supplier shall be entitled to withdraw from the contract.

6. Guarantee Claims, Complaints

1.) The quality and composition of the delivered goods will be in accordance with the Supplier's specification and description as set out in the offer document or order confirmation. The parties to the contract agree that the goods are to be deemed free of defects provided they are in accordance with such specification. Deliveries of up to 10% less than the contractually agreed amount shall not be regarded as breach of contract.

2.) In the event of defective goods the Purchaser is entitled to either remedy the defects or to request replacement delivery. All other guarantee claims are excluded. In the event that neither remedy nor replacement are possible, the Purchaser has the option to either withdraw from the contract, request a reduction in purchase price or claim damages pursuant to current legal entitlements. The time for replacement delivery must take into account the time required by the Supplier to obtain the goods.

3.) The Purchaser is under an obligation to examine each delivery on receipt and to notify the Supplier of recognisable defects promptly and in any event within 7 days of delivery.

4.) Latent defects are to be notified to the Supplier immediately after their discovery.

5.) The right to assign or transfer any guarantee claims without onward sale to a third party is hereby excluded.

6.) The Purchaser shall inform the Supplier immediately in the event that guarantee claims are raised by a customer of the Purchaser.

7. Liability

1.) The Supplier shall not be liable for negligent acts, including negligent acts on the part of any of its managers and operatives, unless such acts were carried out for the fulfilment of essential contractual duties (Kardinalpflichten).

2.) The Supplier shall not be liable whatsoever for untypical damage, damage which was not foreseeable, or damage which could have been prevented by the Purchaser. In particular, the Supplier shall not be liable for damage arising from improper use or lack of proper supervision of machinery used in the processing of the goods by the Purchaser.

3.) All limitations of liability shall also apply to liability arising from culpa in contrahendo, alternatively as provided by paragraph 311.2 of the German Civil Code (BGB) and unauthorised acts. Furthermore, the Supplier shall not be liable for any consequential damage, liability for which is covered by the provisions of paragraph 241.2 of the German Civil Code (BGB), unless the other party was, by virtue of a position of trust or special knowledge between the parties, entitled to rely upon proper fulfilment of obligations by the other, or where contractual obligations are of the essence.

4.) No limitation or exclusion of liability shall apply in the event that the Supplier is responsible for any damage and injury to life, body and health.

8. Retention of Title

1.) The goods delivered shall remain the property of the Supplier until payment in full of all sums owed by the Purchaser as a result of the trading relationship. This applies also to any payment on accounts system operated by the Purchaser and Supplier.

2.) The Purchaser is entitled to sell or process the goods in the ordinary course of his business but is prohibited from pledging the goods or charge them by way of security to third parties. This is inapplicable in situations in which the sale is to third parties which have excluded, or limited, any claims against them in respect of supplied goods under a retention of title clause.

3.) The Purchaser hereby assigns to the Supplier any claims he may have as a result of the onward sale of the goods, or any other legal reason (see paragraph 950 of the BGB). The Supplier accepts this assignment. Irrespective of this assignment and the Supplier's right to collect debts due the Purchaser remains entitled to collect any trade debts following the assignment for as long as he complies with his obligations under the contract, is not overdue with his payments, is not subject to insolvency proceedings, is able to pay his debts and it does not become obvious following conclusion of the agreement that the Supplier's ability to obtain payment by the Purchaser is jeopardised. The Purchaser must on demand forthwith provide the Supplier with all necessary information relating to any assigned claims and must inform his customers of this assignment. The entitlement of the Purchaser to assign his trade debts to third parties is, to the extent of the Supplier's claims against him, hereby expressly prohibited. In the event of payment from the Purchaser being overdue, the Supplier shall be entitled to demand forthwith the return of any unpaid for goods.

4.) Any processing or alteration of the goods by the Purchaser is done by him as manufacturer on behalf of the Supplier. If the goods are processed with other goods not belonging to the Supplier, the Supplier acquires co-ownership in the new product in proportion of the value of its own goods to that of the value of goods used from other suppliers. If the processing of different goods results in a new main product, it is hereby agreed, that the Purchaser grants to the Supplier co-ownership in the new product which is to be proportionate to the value of its own goods used in the process. The Purchaser, or the customer of the Purchaser hold ownership in trust on behalf of the Supplier.

5.) Items 1-3 apply to new products which have resulted from processing, mixing or alterations.

6.) In the event of payment by bill of exchange or cheque (irrespective of whether such payment is made by the Purchaser to the Supplier, or by the end customer to the Purchaser who then passes on payment in that form to the Supplier) then the Supplier's title in the goods shall continue to be reserved until any bill of exchange or cheque has been met by the Purchaser or the end customer and will not be brought to an end by the crediting to the Supplier of the bill of exchange or the cheque.

9. Intellectual Property Rights

The Purchaser hereby personally guarantees that he has exclusive rights of ownership of the Intellectual Property in the designs and specifications passed to the Supplier for the purpose of manufacture of products by the latter. In the event that any intellectual property claims are nevertheless made against the Supplier by a third party in respect of products manufactured by it to the designs and specifications by the Purchaser, the Purchaser shall indemnify the Supplier fully in respect of all costs and claims incurred in this respect.

10. Applicable Law and Jurisdiction

1.) This contract shall be governed by the laws of Germany. The applicability of CISG is hereby expressly excluded.

2.) The place of performance for all contractual obligations arising out of this contract shall be the place of business of the Supplier. All disputes arising out of this contractual relationship shall be subject to the jurisdiction of the Court of the Supplier's place of business and, if the Supplier so determines, also the Court at the place of business of the Purchaser.

3.) No variations by the parties to this contract, including variations relating to this clause, shall be binding unless agreed in writing.

4.) The above Conditions represent a translation from the original German version of the General Terms and Conditions of the Ohara GmbH. In the event of ambiguity, or difference arising between the original version and this translation, the original German version shall prevail.

OHARA GmbH
Nordring 30 A
D-65719 Hofheim
Germany
Telephone +49 (0)6192/965050
Telefax +49 (0)6192/965051

Date: 07/2002

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