General Terms of Delivery and Payment

of omniconn GmbH

I. Scope
II. Offer and conclusion of contract
III. Terms of payment
IV. Delivery and service time
V. Passing of risk, shipment, packaging
VI. Defects of quality and title, liability
VII. Reservation of title
VIII. Place of performance, place of jurisdiction, applicable law
IX. Escape clause

I. Scope

1. The following terms of sale shall apply to all contracts concluded between the buyer, who is not a consumer within the meaning of § 13 BGB [German Civil Code], and us concerning the delivery of goods. They shall also apply to all future business relations, even if they are not expressly agreed upon once again. Deviating conditions of the buyer, which we do not expressly acknowledge, shall be non-binding for us, even if we do not expressly object to these. The following terms of sale shall also apply if in the knowledge of opposing or deviating conditions of the buyer we carry out the buyer’s order without reservations.

2. Recorded in writing in the contracts are all agreements, which were reached between the buyer and us concerning the execution of the purchase contracts.

II. Offer and conclusion of the contract

1. We can accept an order of the buyer, which is to be qualified as an offer to conclude a purchase contract, within two weeks after receipt of the order by sending an order confirmation or by sending the ordered products within the same period.

2. Our offers are without obligation and non-binding unless we have expressly described these as binding.

III. Terms of payment

1. Our prices shall apply ex works without packaging if not otherwise stipulated in the order confirmation. Our prices do not include the applicable rate of value added tax. We will disclose this separately in the invoice in the statutory rate on the date of the invoicing.

2. A deduction of cash discount is only permitted with a special written agreement between us and the buyer. The purchase price is due and payable immediately net (without deduction) with the receipt of the invoice by the buyer insofar as no other term of payment can be seen from the order confirmation. A payment shall only be deemed as made when we can dispose over the amount. In the event of payments by cheque the payment shall only be deemed as made when the cheque is encashed.

3. The buyer is only entitled to offsetting, even if reports of defects or counter claims are asserted, if the counter-claims are declared final and binding, were recognised by us or are undisputed. The buyer is only authorized to exercise a right of retention if his counter-claim is based on the same contractual relationship.

IV. Term of delivery and service

1. Delivery dates or deadlines, which have not been expressly agreed as binding, are exclusively non-binding details. The buyer must also satisfy all obligations for which he is responsible properly and in time.

2. We are entitled to partial deliveries and services at all times insofar as these are deemed reasonable for the customer.

3. We are entitled to demand compensation for the incurred damages and possible additional expenses if the buyer is in default of acceptance. The same applies if the buyer culpably breaches duties of assistance. With occurrence of the delay in acceptance or debtor the risk of accidental deterioration or accidental loss shall pass to the buyer.

V. Passing of risk, shipment, packaging

1. Loading and shipment are carried out non-insured at the risk of the buyer. We shall make every effort, with regard to type of shipment and manner of shipment, to take the wishes and interests of the buyer into account. Additional costs incurred thereby – also with agreed carriage paid delivery – shall be for the account of the buyer.

2. We neither take back transport nor any other packaging according to the packaging regulations. The buyer must ensure the disposal of the packaging at its own costs.

3. If the shipment is delayed at the request of or due to the fault of the buyer we shall store the goods at the costs and risk of the buyer. In this case the notification that the goods are ready for shipment is deemed equal to the shipment.

4. We will secure the delivery through transport insurance at the request and costs of the buyer.

VI. Defects of quality and title, liability

1. In the event that the defects are remedied we will bear the necessary expenses insofar as these are not increased, because the object of contract is located at a different location than the place of performance.

2. Warranty claims of the buyer shall become statute-barred one year after delivery of the goods by the buyer unless we maliciously failed to disclose the defects. This shall not apply in the event of injuries to life, the body or the health for which we, our legal representatives or our vicarious agents were at fault, or if we, our legal representatives acted with wilful intent or gross negligence or if our simple vicarious agents acted with wilful intent.

3. We shall be liable irrespective of the following liability restrictions according to the statutory provisions for damages to life, the body and health, which are due to a negligent or wilful breach of duty on our part, by our legal representatives or our vicarious agents as well as for damages, which are covered by the liability according to the Product Liability Act. We shall be liable according to the statutory provisions for damages, which are not covered by Sentence 1 and which are due to wilful or grossly negligent breaches of contract and fraudulent intent on our part, our legal representative or our vicarious agents. In this case however the liability for damages is limited to the foreseeable, typically occurring damages, insofar as we, our legal representatives or our vicarious agents did not act with wilful intent. We shall also be liable within the framework of this guarantee to the extent, in which we submitted a guarantee of condition and/or durability with regard to the goods or parts thereof. We shall however only be liable for damages, which are due to the absence of the guaranteed condition or durability, however are not suffered directly by the goods, if the risk of such damages is clearly covered by the guarantee of condition and durability.

4. We shall also be liable for damages, which we cause through simple negligent breach of those contractual obligations, the satisfaction of which only actually enables the proper execution of the contract and upon the compliance with which the buyer as a rule depends and may depend. However we shall only be liable insofar as the damages are typically associated with the contract and are foreseeable.

5. A further liability is excluded irrespective of the legal nature of the asserted claim, this shall also in particular apply to claims in tort or claims for reimbursement of fruitless expenses instead of the service. Insofar as our liability is excluded or limited this shall also apply to the personal liability of our employees, workers, representatives and vicarious agents.

VII. Reservation of title

1. The delivered goods (reserved goods) shall remain our property until the satisfaction of all claims, including all balance claims from current account, to which we are entitled against the buyer.

2. The buyer must treat the reserved goods carefully and sufficiently insure these at the new value at its own costs against fire, water and theft damages. Maintenance and inspection work, which becomes necessary, is to be carried out by the buyer in time at its own costs.

3. The buyer is entitled to properly sell and/or use the reserved goods in business transactions as long as it is not in default of payment. Pledges or assignments as collateral are not permitted. The buyer hereby now already assigns any claims arising from the resale or any other legal ground (insurance, illicit act) with regard to the reserved goods (including all balance claims from current account) in full to us as a precautionary measure. We hereby accept the assignment. We revocable authorize the buyer to collect the claims assigned to us for its account in its own name. The collection mandate can be revoked at all times if the buyer does not properly satisfy its payment obligations. The buyer is not authorized to assign this claim for the purpose of debt collection by way of factoring either unless the obligation of the factor is established at the same time to ensure payment of the consideration in the amount of the claims directly to us if claims still exist on our part against the buyer.

4. In case of access of third parties to the reserved goods, in particular attachments, the buyer shall point out our property and inform us immediately in order for us to be able to assert our property rights. Insofar as the third party is not in the position to reimburse us the court or out-of-court costs incurred in this respect the buyer shall be liable for these costs.

5. We undertake to release the collateral to which we are entitled to the extent that the realisable value of our collateral exceeds the claims which are to be secured by more than 20 %, we are responsible for selecting the collateral items which are to be released.

VIII. Place of performance, place of jurisdiction, applicable law

1. The place of performance and place of jurisdiction for deliveries and payments (including cheque and bill of exchange actions) as well as all disputes arising between us and the buyer from the purchase contracts concluded between us and it is our registered office. We are however entitled to also file an action against the buyer at its place of residence and/or registered seat.

2. The relations between the contractual parties are exclusively regulated according to the law which is applicable in the Federal Republic of Germany. The application of the UN law on the international sale of goods is excluded.

IX. Escape clause

Should one of the afore-mentioned regulations be or become invalid in full or in part this shall have no effect on the validity of the other regulations. For the event of the invalidity or nullity of individual provisions the parties undertake to agree upon such a regulation in its place, which shall as far as possible correspond with the originally presented provision with retrospective effect.