General terms and conditions

General Terms and Conditions of Sale and Delivery

I.) General

1.

All current and subsequent legal transactions between R. Kohlhauer GmbH – hereinafter referred to as the Seller – and the Buyer shall be concluded in accordance with these Terms and Conditions – hereinafter referred to as the GTC.

2.

The buyer accepts these GTC as binding.

3.

Conflicting General Terms and Conditions of the Buyer shall not become part of the contract regardless of whether they are expressly contradicted or not. This shall also apply to the Buyer’s terms and conditions insofar as they deviate from statutory provisions. Other provisions shall only apply if conflicting terms and conditions are expressly accepted by the Seller in writing.

4.

Verbal collateral agreements are only legally binding if confirmed by the seller in writing.

5.

These General Terms and Conditions are designed for legal transactions that do not fall under the special provisions of the sale of consumer goods under §§ 474 et seq. German Civil Code (Bürgerliches Gesetzbuch – BGB). If this assumption does not apply or if the Buyer is a consumer within the meaning of § 13 BGB, the Buyer shall immediately notify the Seller in writing; instead of these GTC, the Seller’s GTC for Consumers, which can be viewed on the website in the respective valid form, shall then apply.

6.

Insofar as the term Buyer is used in these GTC, this is done for the purpose of clarity and in any case includes persons of other genders.

II) Conclusion of the purchase contract, prices

1.

The Buyer shall be obliged to expressly notify the Seller in writing prior to the conclusion of the contract if the ordered goods are intended for uses deviating from the intensities of use recommended by the Seller, are not intended to be exclusively suitable for ordinary use, if the Buyer assumes a certain suitability for use or bases its expectations regarding the quality of the goods on public statements, advertising or other circumstances outside the specific conclusion of the contract or if the ordered goods are used under unusual conditions.

2.

Quotations and offers of the Seller are subject to change until the Seller issues a written order confirmation or delivers the ordered goods. If value added tax is not shown separately in price quotations, it shall be added at the statutory rate applicable on the date of performance. Quotation prices or model surcharges for deliveries of/with silicate glass, toughened safety glass, laminated safety glass, refer exclusively to specified dimensions based on drawings. If the Buyer nevertheless sends templates, the model surcharge changes to 100 %. Tolerances in dimensions shall be borne by the Buyer.

3.

The buyer is bound to his order placement for 14 days from its dispatch, taking into account the usual postal delivery times.

4.

The written order confirmation issued by the seller determines the content and scope of the services to be provided by him. This also includes the method of shipment. The seller delivers EXF (Incoterms 2000). The shipping costs including any transfer fees, cartage, packaging, pallets, customs duties, etc. shall be borne by the Buyer.

In case of changes in dimensions or number of pieces as well as in case of individual reorders, a new calculation is required.

All offers with fire protection glass, alarm glass and C. class combiset are subject to an additional 2 % transport insurance. For delivery according to packaging plan, additional costs of 5 EUR/sqm net will be charged additionally.

a)

If, between the conclusion of the contract and delivery, raw material, energy, wage or procurement costs, customs duties or other public charges relating to the goods increase, the Seller shall be entitled to a corresponding price increase. This shall only not apply if the agreed delivery of the object of purchase is to take place less than 4 months after conclusion of the contract or if the Seller is in default of delivery at the time of the price increase.

b)

If price increases of more than 20% of the original purchase price are demanded, the Buyer may withdraw from the contract without prejudice to other reasons for withdrawal.

6.

Delivery dates and delivery periods are subject to the undisturbed factory and supply process as well as the unhindered shipping and approach possibilities. Agreed delivery periods always refer to dispatch from the Seller and begin on the date of the written order confirmation. The Seller is entitled to deliver before the agreed time.

7.

Compliance with delivery dates and deadlines is subject to clarification of all technical details on the one hand and compliance with the terms of payment described in Section IV. on the other hand as well as the provision of documents, permits or releases required for the delivery by the Buyer.

8.

If the shipment of the delivery is delayed at the Buyer’s request by more than two weeks after the agreed delivery date or, if no exact delivery date was agreed, after the Seller’s notification of readiness for shipment, the Seller may charge a flat-rate storage fee for each month (pro rata temporis, if applicable) in the amount of 0.5% of the price of the delivery item, but not more than 5%. The Buyer shall be entitled to prove that the Seller has not suffered any damage or that the damage suffered by the Seller is significantly lower. The Seller shall be entitled to prove that a higher damage has occured.

9.

Shortages of raw materials or energy, strikes, lockouts, traffic disruptions and official orders as well as delivery date overruns of upstream suppliers, operational disruptions, e.g. extraordinary loss of manpower due to accidents and epidemics, unforeseeable machine failures, subsequent material shortages, import or export restrictions, all cases of force majeure such as e.g. mobilization, war, riots, import bans due to embargo decisions and other circumstances for which the Seller or its subcontractors are not responsible shall release the Seller from its obligation to deliver for the duration of their existence, insofar as they affect the Seller’s ability to deliver.

In the aforementioned cases, delivery periods and dates shall be extended by the duration of the hindrance, but by no more than 4 months.

After the expiry of 4 months, the Buyer shall be entitled to withdraw from the contract without prejudice to other statutory rights of withdrawal; payments already made shall be refunded.

10.

The Seller’s employees, sales representatives and other vicarious agents are not authorized to dispense with the requirement of a written order confirmation or to make any agreements or guarantees that differ from the content of the order confirmation. Changes to the concluded contract also require written consent by the Seller.

III.) Obligations of the Seller

1.

The Seller shall deliver the goods specified in the written order confirmation. If the goods to be delivered need to be specified in more detail, the Seller shall make the specification taking into account its own interests and the interests of the Buyer which are recognizable and justified for the Seller. The Seller shall not be obliged to make any deliveries or provide any other services not included in the written order confirmation. In particular, the Seller shall not be obliged to advise the Buyer. The Seller shall not be responsible for product statics. The Seller is also not responsible for construction details and local conditions at the building.

The fulfillment of obligations associated with the ‘placing on the market’ of the goods outside the Federal Republic of Germany shall only be owed by the Seller by special agreement.

2.

The Seller shall be obliged to deliver goods of average type and quality, taking into account the generally applicable technical regulations with regard to type, quantity, dimensions, quality and packaging. The Seller shall be entitled to make and settle partial deliveries, provided that this appears reasonable in view of legitimate interests of the Buyer..

3.

The Seller shall be entitled to fulfill contractual obligations after the agreed delivery time, if the Buyer is informed of the missed deadline and is notified of a period for subsequent performance, unless subsequent performance is unreasonable for the Buyer or the Buyer objects to the offer of subsequent performance within a reasonable period.

The Seller shall also be entitled to make several attempts at subsequent performance in accordance with these provisions. In the event of subsequent performance, the Seller shall reimburse the additional expenses demonstrably incurred by the Buyer as a result of exceeding the deadline, insofar as the Seller is liable for damages in accordance with Sections VI. and VIII.

4.

The risk shall pass to the Buyer as soon as loading of the goods is commenced or the Buyer fails to comply with its obligation to accept the goods.

5.

Without prejudice to any further legal rights, the Seller shall be entitled to raise a plea of uncertainty pursuant to Section 321 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) in particular if the Buyer only partially or insufficiently fulfils its obligations towards the Seller or third parties or is late in making payments or if the limit set by a credit insurer has been exceeded or will be exceeded with the pending delivery. Instead of the objection, the Seller may make future deliveries, including those already confirmed, conditional on the Buyer paying in advance. The Seller shall not be obligated to make deliveries as long as any performance made by Buyer to avoid the objection does not provide adequate security or may be contestable.

IV.) Payments

1.

Payments by the Buyer shall be made exclusively in Euro. If prices in foreign currencies have been agreed, the exchange rate at the time of delivery of the object of purchase shall apply.

2.

In the case of claims based on several deliveries, the offsetting of cash receipts against one or the other debt shall be left to the Seller’s discretion.

3.

The seller reserves the right to accept bills of exchange. The seller may refuse to accept checks. Acceptance shall always be on account of performance only. Discount charges, collection charges and all other costs in connection with the cashing of checks shall be borne by the Buyer and shall be paid immediately or upon first demand by the Seller.

4.

Offsetting and assertion of a right of retention on the part of the Buyer is only permitted with undisputed or legally established claims. Furthermore, the Buyer shall only be entitled to retention insofar as his counterclaim is based on the same contractual relationship. If the Buyer makes use of a statutory right of retention due to actually existing or alleged defects, this right of retention shall be limited to that part of the amount owed, the retention of which, taking into account the costs of remedying the alleged defects in their proportion to the total amount owed, does not violate good faith. The Seller shall be entitled to avert the exercise of the right of retention by providing security – including by way of a guarantee.

5.

If the Buyer is in default of payment, the Seller shall be entitled to charge default interest in the amount of 8 percentage points above the prime rate of the European Central Bank applicable at the time. The Seller reserves the right to prove higher default interest.

6.

In the event of non-compliance with the terms of payment or in the event of circumstances which become known to the Seller after conclusion of the contract and which are suitable to reduce the creditworthiness of the Buyer, all claims of the Seller shall become due immediately. The same shall apply if the Buyer suspends payments, is overindebted, insolvency proceedings have been instituted against its assets or the institution of such proceedings is rejected for lack of assets. In this case, the Seller shall be entitled to make any outstanding deliveries and, after expiry of a reasonable grace period, to withdraw from the contract without compensation and to claim damages for non-performance. Notwithstanding the foregoing rights, the Seller shall also be entitled to take back the goods delivered under retention of title at the Buyer’s expense. In addition, the Seller shall be entitled to return accepted bills of exchange before they expire and to demand immediate cash payment. This shall not apply if the Buyer’s default in payment is based on a justified complaint about the delivered goods.

V.) Retention of title, security interests

1.

Delivered goods shall remain the property of the Seller until full settlement of all claims, irrespective of the legal grounds, including main and ancillary claims which will only become due in the future (hereinafter referred to as “reserved goods”). In the case of a current account, the retention of title shall apply to the respective balance.

2.

Processing and transformation of the goods subject to retention of title shall be carried out for the Seller as manufacturer, but without the Seller being obligated as a result.

If the reserved goods are inseparably combined or mixed with other items by processing or otherwise, the Seller shall acquire co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value or, in the absence of an invoice value, to the current market value of the other items at the time of mixing or processing.

3.

The Buyer shall be entitled to sell the reserved goods in the ordinary course of business as long as it meets its payment obligations, is not in default vis-à-vis the Seller and no application for the opening of insolvency proceedings has been filed. The Buyer shall not be entitled to any other dispositions (transfer of ownership by way of security, pledging, etc.) of the reserved goods. The Buyer hereby assigns to the Seller by way of security all claims arising from the resale or on any other legal grounds (insurance benefits, claims in tort, etc.), including all current account balance claims, where applicable pro rata in accordance with the Seller’s co-ownership share.

4.

The Buyer is revocably authorized to collect the claims. The Seller shall be entitled to revoke the authorization if the Buyer fails to meet its payment obligations, is in default vis-à-vis the Seller or an application for the opening of insolvency proceedings has been filed. In this case, the Buyer shall be obliged to notify the Seller of the assigned claims, to provide all information necessary for the collection of the claims and to notify the third-party debtors of the assignment. The latter can also be done by the seller.

5.

The Buyer shall store the reserved goods for the Seller free of charge. He shall keep the reserved goods in proper condition and to insure them at his own expense to an extent corresponding to commercial diligence. In this respect, the Buyer shall also bear the risk of accidental loss of the reserved goods in his possession.

The Buyer hereby irrevocably assigns to the Seller, by way of security, the full amount of the claims accruing against the insurers; the Seller accepts the assignment.

6.

In the event of seizure due to a court order or other access by third parties to the reserved goods, the Buyer shall notify the Seller immediately and object to the access with reference to the (co-)ownership of the Seller. The costs of averting the seizure shall be borne by the Buyer.

7.

In the event of a breach of contract by the Buyer, in particular in the event of default in payment, the Seller shall be entitled to demand immediate surrender of the reserved goods, to enter the Buyer’s business premises, to take possession of the reserved goods and/or, if applicable, to demand assignment of the Buyer’s claims for surrender.

The assertion of these rights or the seizure of the reserved goods shall not constitute a rescission of the contract unless the Seller has expressly declared such rescission.

8.

The Buyer undertakes to inform the Seller without delay prior to the conclusion of a contract with a third party if its contractual partner or the owner of the main item should demand the exclusion of the assignment of the claims referred to in Clauses 1 and 2 above.

9.

Upon request, the Buyer shall be obliged to provide information about the respective stock of the reserved goods. The Seller shall be irrevocably authorized to inspect the reserved goods during normal business hours.

VI.) Warranty

1.

Claims of the Buyer due to material defects shall become statute-barred one year after the statutory commencement of the limitation period. Deviating from p. 1, the statutory limitation rules shall apply if a claim for damages is based on intent.

2.

The seller is not liable for material defects that occur after the time of the transfer of risk. Insofar as the customer, without the consent of the seller, himself or through third parties, attempts to remedy material defects, the Seller shall be released from the warranty obligation, unless these are carried out properly.

3.

Warranties or assurances requested by the Buyer shall in any case be specifically stated in the written order confirmation, also in the case of subsequent transactions. Employees, sales representatives and other vicarious agents of the Seller are not authorized to give guarantees, assurances or promises of suitability with regard to goods and other services.

4.

The Buyer shall examine each individual delivery immediately and in every respect for recognizable as well as typical deviations of a qualitative, quantitative and other nature and shall immediately notify the Seller in writing of any deviations and at the latest within a period of one week of all obvious and/or recognized defects, shortfalls and incorrect deliveries prior to installation or other processing or use, stating the deviation found directly to the Seller, otherwise the delivery shall be deemed approved.

Employees, sales representatives and other vicarious agents are not entitled to accept notices of defects or to make declarations concerning the warranty. In all other respects, §§ 377 ff German Commercial Code (Handelsgesetzbuch – HGB) shall apply.

5.

In the event of justified complaints, the Buyer may demand subsequent performance from the Seller within a reasonable period of time after notification of a material defect, in accordance with the statutory provisions. In this case, the Seller shall bear the reasonable expenses for the supplementary performance to the extent that these do not increase as a result of a change of location or the change of other avoidable circumstances which occurred after the Seller knew or should have known of the defect and the Seller is liable for damages in accordance with the provisions in Section VIII.

In the event that the supplementary performance finally fails, is impossible or is not carried out within a reasonable period of time, the Buyer shall be entitled in accordance with the statutory provisions to reduce the purchase price or, after setting a deadline and threatening to refuse performance, to withdraw from the contract within a preclusive period of 4 weeks after expiry of the deadline.

6.

If the Seller is liable under these provisions for damage caused by slight negligence, the Seller’s liability shall be limited:

a)

Liability shall only exist in the event of a breach of essential contractual obligations, which include such obligations whose fulfillment is a requirement for the proper performance and on whose compliance the buyer/client may regularly rely. The limitations of liability under this paragraph shall not apply to injuries to life, body or health of the contractual partner/Buyer/client or in the case of guarantee commitments. In the case of warranty promises, the Seller shall only be obliged to compensate for the damage that is typical and foreseeable at the time of conclusion of the contract. The Buyer/principal cannot claim damages exceeding his interest in the proper execution of the contract.

b)

Insofar as the damage is covered by an insurance policy taken out by the Buyer, the Seller shall only be liable for any related disadvantages of the Buyer, e.g. higher insurance premiums or interest disadvantages until the settlement of the claim by the insurance company.

7.

The same applies to damages caused as a result of a material defect of the object of purchase.

8.

In all other respects, the Seller shall only be liable for intent and gross negligence, including its representatives and vicarious agents. The personal liability of the legal representatives, vicarious agents and employees of the Seller in case of slight negligence is excluded.

VII.) Withdrawal

1.

Without prejudice to the statutory provisions of rescission, the Buyer shall be entitled to withdraw the contract if the performance incumbent upon the Seller has become impossible, the Seller has defaulted in the performance of principal contractual obligations or has (otherwise) materially breached obligations established by this contract and the Seller is responsible for the default or breach of obligation pursuant to Section VIII. However, without waiving any further legal requirements, the Seller shall always be in default, i.e. even in the case of a calendar-defined performance period, only on the basis of a separate written request sent directly to the Seller after the due date to perform the act of performance within a reasonable period of time.

2.

Notwithstanding any further statutory rights, the Seller shall be entitled to withdraw from the contract without compensation if the Buyer objects to the application of these GTC, if the special provisions of the sale of consumer goods apply (§§ 474 et seq. German Civil Code (Bürgerliches Gesetzbuch – BGB)), if the opening of insolvency proceedings on the assets of the Buyer is applied for, if the Customer, without giving justifiable reasons, does not meet material obligations due to the Seller or third parties, if the Buyer gives inaccurate information about his creditworthiness, if the Seller himself is not supplied correctly or on time, or if the Seller is no longer able to fulfill his performance obligations for other reasons by means that are reasonable taking into account his own and the Buyer’s legitimate interests discernible at the time of the conclusion of the contract, and in particular the agreed consideration.

VIII.) Damages

1.

Except for liability under the German Product Liability Act (Produkthaftungsgesetz – ProdHaftG), due to fraudulent concealment of a defect, due to the assumption of a guarantee of quality or for damages arising from culpable injury to life, body or health, the Seller shall be liable to pay damages within the scope of the contract concluded with the Buyer as well as extra-contractually without waiving the statutory requirements only in accordance with the following provisions:

a)

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

b)

The Buyer shall be obliged in the first instance in accordance with the provisions of Section VI. to make use of offers of subsequent performance or in accordance with the provisions of Section VII. to make use of the remedies regulated therein and may only claim damages on account of remaining disadvantages, but in no case in lieu of other remedies.

c)

The Seller shall only be liable in the event of culpable breach of material obligations and in the event of intentional or grossly negligent breach of other obligations owed to the Buyer.

d)

The proven damage of the Buyer to the extent that it was foreseeable for the Seller at the time of conclusion of the contract as a consequence of the breach of duty with regard to the occurrence of damage and the amount of damage and could not have been avoided by the Buyer. The Buyer shall notify the Seller in writing of any special risks, atypical damage possibilities and unusual damage amounts prior to the conclusion of the contract.

e)

The Seller shall not be liable for loss of profit and non-material damage suffered by the Buyer. In addition, the amount of damages due to delay is limited to 0.5% for each full week of delay, a maximum of 5% and due to other breaches of duty to 200% of the value, the non-contractual part of the performance. This provision shall not apply in the event of gross negligence on the part of the Seller’s executive bodies or senior employees.

f)

Compensation in lieu of performance, the Buyer may, without prejudice to the compliance with the statutory provisions and the provisions provided in these GTC, only claim after he has threatened the Seller with refusal of performance within appropriate period after the due date and, in the event of failure to perform, has finally refused performance vis-à-vis the Seller within a reasonbale period after threatening refusal.

g)

The limitation period of one year, from the beginning of the statutory limitation period, shall apply to contractual and non-contractual claims of the Buyer, insofar as they compete with each other. Insofar as the Seller is not liable due to intent or the Buyer’s claim has not become time-barred beforehand, a preclusion period of 6 months shall apply to the filing of claims for damages, beginning with the rejection of the claim for damages.

h)

The above provisions of the Seller shall also apply to claims of the Buyer for reimbursement of expenses, to the liability of the Seller for culpa in contrahendo as well as to the personal liability of the employees, representatives and vicarious agents of the Seller.

2.

Notwithstanding any further legal or contractual claims of the Seller, the Buyer shall be obliged to pay the Seller the following damages:

a)

In the event of delayed payments, the Buyer shall reimburse the statutory costs of judicial and extrajudicial prosecution as well as interest in the amount of 8 percentage points above the prime rate of the European Central Bank.

b)

Subject to the Buyer proving that no damage or only a significantly lower amount of damage has been incurred, the Seller shall be entitled, in the event of a delay in acceptance or an agreed call-off of the delivery by the Customer which is not made, to demand, after setting a reasonable grace period,to demand lump-sum damages in the amount of 10% of the respective net delivery value without concrete proof of damage.

3.

In the business raltions with its customers, the buyer shall be obligated to limit his liability for damages, in terms of reason and amount, within the scope of what is legally possible and customary in the industry.

4.

Without waiving any further claims of the Seller, the Buyer shall indemnify the Seller -without limitation- against all claims of third parties which are asserted against the Seller on the basis of product liability or similar provisions, insofar as the liability is based on circumstances which -such as the product presentation- were set by the Buyer or other third parties without the express and written consent of the Seller.

This indemnification shall in particular also include the reimbursement of expenses incurred by the Seller and shall be granted by the Buyer waiving any further preconditions or other objections, in particular waiving compliance with monitoring and recall obligations as well as waiving the objection of the statute of limitations.

IX.) Miscellaneous

1.

A handwritten signature is not required to comply with the written form. This shall include notifications by fax, e-mail and other notifications in text form.

2.

The Seller reserves all property rights, copyrights and other industrial property rights to illustrations, drawings, price lists, calculations and other documents provided by the Seller 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.

X.) Final clause

1.

The place of performance for performance and payment shall be the Seller’s place of business in Gaggenau, Federal Republic of Germany.

2.

The place of jurisdiction – also for proceedings involving bills of exchange, checks and documents – shall also be the Seller’s place of business. However, the Seller shall also be entitled to sue the Buyer at the Buyer’s general place of jurisdiction.

3.

Insofar as the present terms and conditions of business are invalid in whole or in part, the validity of the remainder of the contract and of the other terms and conditions of business shall not be affected thereby. Insofar as individual provisions are invalid, the content of the contract shall be governed by the statutory provisions.

4.

German law shall apply exclusively to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).