Terms and Conditions of Sale and Delivery for Zellaerosol GmbH, 79669 Zell i. W.

1. Scope and Differing Terms and Conditions:

a) Unless differing terms or conditions have been agreed upon in writing, solely the following terms and conditions are valid for all present and future deliveries and services (subsequently jointly referred to as “Delivery” or “Deliveries”).
b) These terms and conditions apply only to companies in the sense of § 14 BGB (Section 14 German Civil Code), body corporate organized under public law, or public-law special investment funds.
c) The invalidity of individual stipulations of these Terms and Conditions does not affect the validity of the remaining terms or conditions.
d) Our Terms and Conditions of Sale and Delivery apply exclusively. Deviating, conflicting or amendato- ry general terms and conditions of the Customer shall only become an integral part of the contract if we have expressly approved of the applicability of the same. This approval requirement shall apply in any case, even if, for instance, being aware of the terms and conditions of the Customer, we deliver to the Customer without any reservation.
e) Any agreement made with the Customer in individual cases (including ancillary agreements, amend- ments and alterations) override these Terms and Conditions of Sale and Delivery in any case. For the contents of such agreements, subject to the proof of the contrary, a written contract or our written confirmation shall be authoritative.
f) Material declarations and notices to be given to us by the Customer after conclusion of the contract (e.g. appointment of dates, notices of defects, declaration of rescission or reduction) shall not be ef- fective unless in writing.

2. Offers / Orders:

Our offers are not binding. Unless there is a different deadline in the Customer‘s order, the Customer is bound to the order for 14 days after receipt of the order. Contracts become legally binding only up- on our written confirmation or by means of our delivery. Confirmation by fax or e-mail also fulfills the condition that the confirmation shall be in writing.

3. Transfer of Risk / Delivery / Obligation to Accept:

a) Unless there is a special agreement, risk is transferred to the Customer according to FCA (Incoterms 2010®) our premises in Zell i. W. Should shipping be delayed for reasons beyond our control, risk is transferred to the Customer as soon as we have notified the Customer that the goods are ready to ship. This condition also applies to partial deliveries or in those exceptional cases in which we also provide other services such as assuming shipping costs or delivering the goods. At the Customer‘s request we will insure the Delivery against transportation damages at the Customer‘s expense.
b) The extent of the Delivery will be determined by the order and the order confirmation. Excess or short deliveries of up to +/- 10% are customary and must be accepted by the Customer without a specific written agreement.
c) The Customer must take all goods that have been ordered and all goods that have been released by the material and production release process.
d) Partial deliveries in appropriate amounts are allowed as long as they are reasonable for the Customer.

4. Prices and Shipping:

a) Prices are according to FCA (Incoterms 2010®) our premises in Zell i. W., net in Euro, and do not include the applicable sales tax.
b) In orders with delivery periods of more than 2 months, or in annual contracts or other frame contracts or price agreements with durations of more than two months; we shall be entitled to increase or de- crease the agreed-upon prices correspondingly should (after conclusion of the contract) there be sig- nificant changes in pay, material, energy, or raw material expenses and we are not responsible for these changes. Such a price increase will not be more than 10%.
c) The Customer must authorize us to ship goods that are ready to ship or pick up such goods within 3 days after the Customer has been notified that the goods are ready to ship. After this period of time we are entitled to bill the Customer for the goods and for reasonable storage costs.

5. Payment / Interest on Late Payments:

a) Without a written agreement to the contrary, bills are due immediately after receipt and must be paid net without any deductions. The timeliness of the payment is determined by the date of the irrevoca- ble deposit of the payment to our account.
b) Should payment not arrive within 10 days after the receipt of the bill, we will charge interest on late payments of either 8 percentage points above the currently valid basis interest rate, or of 10%, which- ever is greater.
c) We accept checks and bills of exchange only upon previous written agreement and also only on account of performance. Collection charges and discount and bill of exchange fees are borne by the Customer and are due immediately without any deductions.

6. Retention of Title:

a) We retain title to the delivered goods until all payments have been received and all checks and bills of exchange accepted as part of the business relationship with the Customer have been irrevocably credited to our account. Should an open account relationship exist, retention of title applies to the acknowledged balance.
b) The Customer must handle the goods delivered subject to retention of title (subsequently referred to as “Conditional Goods”) with care and keep them in good condition. In particular, it must insure them against loss and damage adequately for their market value at his own expense. The Customer must show us the insurance policy as well as proof of payment of the insurance premiums on request. The Customer cedes to us in advance any claims arising from the insurance policies subject to the condi- tion subsequent that the Customer assumes title to the goods.
c) Treatment and processing of the Conditional Goods by the Customer are always carried out on our behalf without creating any liability on our part. Should the Conditional Goods be mixed or combined with other materials, we acquire joint ownership to the new goods in the proportion of the net invoiced value of the Conditional Goods to that of the other materials. The resulting new goods are to be con- sidered Conditional Goods in the sense of this section.
d) The Customer may sell the Conditional Goods or the new goods in the course of normal business transactions. However, the Customer assigns us in full and in advance all claims accruing from the further sales or use.
e) As long as the Customer meets his payment obligations to us from these proceeds, the Customer may collect the claims assigned to us.
f) Should the Customer no longer meet his payment obligations to us, we may revoke our permission to further sell or use the Conditional Goods and demand that the Customer inform us about assignments of claims and the corresponding debtors, give us all information necessary for the collection of the claims, surrender the relevant documents, and inform its debtors about the assignment. Reposses- sion of the Conditional Goods does not constitute withdrawal from the contract. Should we withdraw from the contract, we have the right to sell the goods on the open market.
g) The Customer must notify us without delay of third-party actions against the Conditional Goods. To the extent that the Customer cannot recover expenses resulting from the defense against such an action from the third party, it must bear these expenses.
h) Should the value of collateral exceed our claims by more than 10%, and should the Customer so request, we will release collateral of our choice to this extent.
i) To the extent that retention of title should not be valid according to the laws of the country in which the delivered goods are situated, the Customer must, at our request, provide collateral of equal value. Should the Customer not comply with this request, we may, without regard to agreed-upon due dates of payment, demand the immediate payment of all open accounts.

7. Delivery Period / Reservation of Punctual and Correct Supply / Force majeure:

a) Delivery periods are only approximate.
b) The delivery period begins with the receipt of the order confirmation, but not before full clarification of all details concerning the execution and fulfillment of the order, as well as of technical questions, and not before the receipt of any possibly agreed-upon partial payment or payment security.
c) The delivery deadline has been met if the goods have been loaded onto the conveyance provided by the Customer on or before this deadline. Should shipment be delayed for reasons beyond our control, the delivery deadline has been met when we inform the Customer that the goods are ready to ship.
d) Should Delivery be delayed, in cases of ordinary negligence our liability is limited to 0,5% of the net invoice value of the delayed portion of the Delivery for every full week of delay and to a maximum total amount of 5% of this value. Claims for damages instead of performance according to Subsection 10 b) are not affected by this limit. The Customer must inform us about contractual penalties with regard to the Customer‘s customers no later than at the time at which the contract is concluded.

e) Our obligation to supply is subject to the reservation that we ourselves are punctually and correctly supplied by our own suppliers. This reservation particularly applies to semi-finished goods or raw material. Should we ourselves not be correctly or punctually supplied by our suppliers, we are entitled to withdraw from the contract. In such cases, claims for damages against us are excluded. This provi- sion does not apply when we did not conclude a congruent covering transaction or we are ourselves responsible for the incorrect or delayed delivery by our suppliers.
f) Events that are neither foreseeable, avoidable, nor subject to our control (e.g., force majeure; stop- pages; legal industrial actions; difficulties in obtaining material or energy; transportation delays; short- ages of labor, energy, or raw materials; actions by administrative bodies; as well as difficulties in ob- taining authorizations (in particular import and export licenses) extend the agree-upon delivery period for the length of the disturbance and its effects. This extension of the delivery period also applies when the above events affect our suppliers or occur during an existing delay. Should the delay not be only temporarily, both partners have the right to withdraw from the contract. Should these conditions make delivery impossible or unreasonable, we are no longer obligated to deliver. In any case, any claim for damages is excluded.
g) Should the Customer not be able to punctually provide materials or services we need for proper production of the order, the Customer must inform us thereof at least 10 days before the planned production date. This notification is necessary in order to avoid expensive changes in production. The Customer must bear any resulting extra expenses.

8. Use of the Goods / Storage:

The products that we have filled must only be used and stored in compliance with the applicable regu- lations. Usage instructions and in particularly warnings printed on the packaging must be followed, as must be instructions in the corresponding safety information sheets. Should there be uncertainty, use or storage must be delayed until a qualified person has been consulted. Claims due to improper use or storage are excluded.

9. Defects:

a) Our product descriptions do not constitute guarantees.
b) Should there be no agreements to the contrary, customary or slight, technically unavoidable deviations in quality, color, dimensions, or weight are not defects.

c) Defects in part of a Delivery do not give the Customer the right to reject the whole Delivery. We inspect the goods before shipping. We must be notified of apparent defects without delay, but no later than eight (8) days after receipt of the Delivery; of hidden defects within 5 days after discovery. Should these deadlines be exceeded, all claims and rights due to liability for defects for these defects expire. Notice must be in writing and accurately describe the type and extent of the defect.
d) As far as the Customer provides raw materials, packaging materials or formulations for the production (subsequently referred to as Proved Goods), the same shall be delivered to us free of any charges and with the pertaining specification documents. They shall be suitable for the intended purpose and shall be approved and shall meet the statutory provisions in terms of design and labelling. We are entitled, but not obliged without any special agreement, to check Provided Goods for defects or their suitability for the production purpose (e.g. inspection of incoming goods). The same shall apply corre- spondingly if we are obliged to call materials and raw materials from contracts between the Customer and any third party against charges.
e) For any loss due to shrinkage and rejects of up to 2 % for raw materials and packaging materials and up to 5% for labels, which were provided to us by the Customer for production, no complaint shall be filed. Such loss is common within the industry and shall be borne by Customer.
f) The period of limitation for warranty claims due to a deficiency is 12 months after transferal of risk unless we are liable for any damage due to the injury of life, body and health, have violated our obli- gations deliberately or with gross negligence, have maliciously concealed defects, have given a guar- antee extending beyond this period, or a longer period is required by law.
g) Should there be legitimate claims due to defects, we have the choice between delivering replacement items or repairing the goods. Should the supplementary performance fail, the Customer may demand a reduction in price or, should there be significant defects, withdraw from the contract. Should the supplementary performance fail, the Customer may also demand damages instead of performance in accordance with Subsection 10 b).
h) We do not bear supplementary performance expenses resulting from the goods having been moved to another location than the Customer‘s place of business.
i) Violation of third party industrial property rights is a defect only when these rights are valid in the Federal Republic of Germany.

10. Liability:

a) We are required to fill the containers according to the specifications agreed upon with the Customer and the legal regulations.
b) Claims for damages of any sort against us are excluded when we, our lawful representatives, or our vicarious agents have caused the damage by ordinary negligence. This exclusion of liability does not apply to death, bodily injury, damage to health, assumption of a contractual guarantee, or violation of important contractual obligations. Important contractual obligations are those obligations, the fulfill- ment of which make the proper execution of the contract possible in the first place, in the adherence to which the Customer constantly trusts and may trust, and the breach of which endangers the achievement of the purpose of the contract. Should we assume a guarantee, our liability is however limited to the extent of the guarantee, or, by ordinarily negligent violation of important contractual obli- gations, to customary and foreseeable damages. Claims arising from product liability law are not af- fected.
c) To the extent that the Customer determines the wording of or provides a label and/or a text, it is liable for the content and appearance of these texts and/or text. This especially applies to warnings, decla- rations of amounts contained, assurances of properties, etc. For goods delivered in neutral packag- ing, the Customer is liable against the end user for all damages due to deficient declaration of its products.
d) Solely the Customer is liable to third parties for his services completely or partially performed in order to enable us to carry out the manufacturing operations, such as the provision of formulations, raw materials and packaging, transport regulations, etc., and their corresponding specifications. The Cus- tomer is responsible for ensuring that its supplies and services have been sufficiently investigated and tested by means of long-term studies and that formulations and packaging have been shown to be chemically and physically suitable for their intended purpose.
e) Release from Claims: Should claims be lodged against us due to product liability the Customer must hold us harmless from such claims if and to the extent that the damage was caused by a fault in material or raw materials (1) provided by the Customer or (2) delivered on the basis of a call-off contract between the Customer and another supplier or (3) purchased by us on the basis of Customer specifications.

11. Additional Expenses:

The Customer will be billed for expenses necessary for production (e.g., lithographs, printing blocks, films, and special tools).

12. Creditworthiness:

Should there be well-founded doubts as to the Customer‘s ability to pay, e.g., due to depressed pay- ments, delay in payment, or bill or check protest, we may require collateral, cash in advance or cash payment for contemporaneous performance. Should the Customer not fulfill this demand within an appropriate time limit, we may withdraw from the uncompleted part of the contract. The insolvency of the customer shall only represent doubt in the solvency of the Customer which entitles to rescission in the sense of this Item 13, if the insolvency proceedings have been rejected for insufficiency of assets.

13. Assignment of Claims:

Should there be no differing agreement and we still have outstanding claims against the Customer, the Customer must assign any possible insurance claims and claims against third parties, e.g., due to damage to the goods, to us in writing within one week of our request.

14. Place of Fulfillment, Place of Jurisdiction, Choice of Law:

a) The place of fulfillment for all claims arising from delivery contracts is our place of business.
b) If the Customer is a trader in the sense of the German Commercial Code, a body corporate organized under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our place of business. However, we also have the right to sue at the Customer’s place of business.
c) Solely German law applies. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 does not apply.

Version: 02/2017