Every existing and future business relationship between MÖLLER-WEDEL OPTICAL GmbH (“us”) and the purchaser shall be subject to the following conditions exclusively. No additional or alternative oral terms or conditions have been agreed upon. Any terms and conditions of purchase or similar business conditions proposed by the purchaser shall be deemed rejected unless they are expressly accepted in writing by us. This shall also apply if the scope of the buyer’s terms and conditions exceeds the scope of these conditions. If under special circumstances there are partial deviations from the following conditions, the remaining conditions shall not be deemed invalid.

2.1  Our offers are subject to change. Contracts are concluded either by our written confirmation of the purchase order or by execution of the purchase order. Should a delivery require an export license the issuance of such licence by the licensing authority is condition precedent for the excecution of a purchase order. Additional agreements shall only become valid if confirmed in writing by us. Purchase orders accepted by us are binding; they may not be revoked or cancelled.

2.2  Prices are quoted ex works plus VAT, and exclusive of any insurance or shipping and handling costs.

3.1  Delivery periods are calculated and quoted ex works. The delivery period shall not commence unless all conducting and performance details have been agreed upon and down payment has been duly received by us.

Events of force majeure, in particular strikes and lockouts, give rise to a reasonable extension of the delivery period. The same applies in the event of any acts of God, e.g. trade disputes, breakdowns, disruption of transport or delays in the delivery of essential raw and construction material which are beyond our reasonable control, if these obstacles demonstrably affect the completion and delivery of the sold good in a considerable manner. This applies to our sub-contractor, too, i.e. if such obstacles occur on the sub-contractor’s side. It may also give rise to a reasonable extension of the delivery period if delays are arising during the manufacturing process due to the special specifications ordered by the purchaser which cannot immediately be met by our production or facilities.

3.2  In the event that any of the circumstances described in 3.1 render the fulfilment of the contract unacceptable or that the purchaser’s financial situation deteriorates significantly and our entitlement to payment is endangered by these events, we are entitled to rescind the contract. In such case any claims of the purchaser for damages are excluded.

3.3  The purchaser agrees to accept partial delivery, unless such delivery falls below the minimum which is acceptable for the purchaser.

4.1 The risk of loss and damage to the products shall pass to the purchaser upon delivery. Delivery takes place by handover of the products to / for shipment. Shipping and handling shall proceed at the purchaser’s own expense and risk. Unless otherwise explicitly agreed in writing, the transportation risk will be insured by us on behalf and at the expense of the purchaser.

4.2 The purchaser agrees to abstain from demanding the redemption of packaging material from us.

4.3 From the time risk of loss and damages passes over to the purchaser pursuant to Section 4.1 above the purchaser shall be responsible to observe all effective legal import and export provisions.

5.1 Unless otherwise agreed upon, purchaser shall pay the purchase price strictly net in cash within 30 days from the date of the invoice at our full disposal (credit entry on our bank account).

If purchaser fails to make due payment purchaser shall be obligated to pay interest on outstanding bills without reminder. The rate of interest on overdue payments is 8 [eight] per cent points above the current base lending rate [“Basiszinssatz”]. In the event that the purchaser runs a business within the meaning of the German Commercial Code [“Kaufmann”] the purchaser is obligated to pay this interest of 8 [eight] per cent points above the current base lending rate from the time of maturity of the purchase price.

5.2 Negotiable bills of exchange and cheques are only accepted on account of payment. The purchaser shall refund discount, bank and encashment charges as well as stamp duties. In the event that during a stipulated retainage payment or until the due date of a bill of exchange the purchaser’s financial situation deteriorates significantly or he fails to pay an instalment on time we shall be entitled to recover the invoiced amount(s) in full before expiration of the retention period.

5.3 The setting off of claims by the purchaser against our claims is only permitted with undisputed or claims which have been assessed by a final and binding court decision. Claims are legally established by a binding and irrevocable judgement. The same shall apply to risks of retention of the purchaser.

6.1 The purchaser agrees that title to the products shall not pass to the purchaser until we received full payment of the products. The purchaser further agrees that title to the products shall not pass to the purchaser until we received full payment of any claims arising from the business relationship with the purchaser. In case of a current account reservation of title will serve as collateral for our balance claims.

6.2 The purchaser is entitled to resell the products in the ordinary course of business. The purchaser is not entitled to pledge or transfer the reserved products by way of security. If the purchaser resells any products before title has passed, he herewith agrees to assign to us all claims arising out of the resale including all ancillary rights against the third party until full payment of all our claims arising from the business relation between purchaser and us. This applies irrespective of the question whether the purchaser resells the goods solely or combined with other services. While the purchaser meets his financial obligations promptly, he is entitled to claim the proceeds of the resale for himself in the ordinary course of business. This authorization can be revoked at any time upon good cause shown, i.e. in particular if the purchaser’s payment is delayed more than one week or if we achieve knowledge that the purchaser has filed an application for insolvency.

6.3  Unless title has passed, the processing or alteration of the products by the purchaser is always carried out on our behalf. We will consequently be considered producer of the new product developed from the processing or alteration in terms of Section 950 of the German Civil Code [“Hersteller”] without any obligations for us. In case of combination of the products which are subject to the retention of title with other goods, proprietary and co- ownership rights of the purchaser are deemed assigned to us so that we will be considered owner of the new products under retention of title in terms of this clause 6.3. The purchaser shall hold the (co-) ownership in trust for us.

6.4  If the value of the securities provided by the purchaser exceeds the value of the secured claims by more than 10 (ten) per cent, we will, on purchaser’s request, release securities at our option.

6.5  On the basis of the retention of title we are entitled to take back the goods without a need to rescind the contract in the event of default of payment by the purchaser. Assertion of the retention of title and/or the distress of the delivered product shall not be deemed rescission of the contract.

7.1  The purchaser shall, at purchaser‘s expense, properly inspect delivered products without delay. We shall be notified in writing without delay of any discovered defects and wrong deliveries within a cut-off period of 5 days after receipt of delivery. In case of hidden defects, we shall be notified about those in writing without delay after the discovery.

7.2  We shall be liable for defects of the delivery for 12 months beginning with the passing of the risk (see section 4.1)). In case of such liability, we will at our own option either repair or replace all items free of charge if they prove defective due to an instance existent on delivery, in particular due to material or construction defects. We are entitled to multiple repairs and/or replacements, but at least 3 attempts. We assume ownership of the replaced parts. Insignificant defects do not give rise to any claim of the purchaser. We will only be liable for transportation costs in connection with our warranties to the usage site agreed upon in the contract between the purchaser and us or, if such a provision does not exist, to the seat of the purchaser.

We shall be liable for goods which are essential but not produced by us only to the extent that we assign our warranty claims against the supplier of these goods. In the event that warranty claims against the supplier prove unenforceable we shall be liable subsidiarily; in this case, our liability is limited to remedy or replacement according to this clause 7.2.

7.3  Any Instructions for use or maintenance not adhered to, changes made in the delivered goods, exchange of parts, or use of materials not in line with the original specifications, shall result in the forfeiture of any warranty rights. This shall apply likewise if performances rendered by us are not used as stipulated in the contract, or are used together with third-party performances, or if the deficiency in the performance results from construction documents furnished by the purchaser, or from other instructions given by him.

7.4  If repair or replacement is impossible or fails repeatedly, the purchaser is entitled to waive his right to remedial action in favour of either reduction of the purchase price or rescission from the contract at his option. Unless otherwise declared by us any inspection of alleged defects is made without prejudice and does not constitute any rectification of a defect does not constitute an acknowledgment of a defect unless we have explicitly declared an acknowledgment.

7.5  Any public advertising messages or product descriptions published by third parties or by us shall not be part of the contractual product specifications. Our product descriptions and specifications do not contain any warranties of a quality which could be subject to a guarantee. Guarantees may only be agreed upon in individually negotiated contract terms.

7.6  The limitation of liability laid down above shall not be applicable if the warranty claim(s) are based on gross negligence or intent on our side or if damages to life, body or health result from our fault. Except as expressly provided in these conditions, any further claims, in particular claims for damages shall be limited pursuant to Sections 8.5. to 8.7 In particular, any liability for consequential damages shall be excluded.

8.1  The purchaser shall be entitled to rescind from he contract in the event the entire performance becomes infeasible for us.

8.2  The purchaser shall also be entitled to rescind from the contract in the event that we fail to deliver on time [“Lieferverzug”] and that we let an additional extension of the delivery period set by the purchaser pass culpably without performance/delivery.

8.3  Constraints in delivery based on act of god or based on events unforeseeable and not caused by us, in particular these are official measures and restrictions concerning import and export, entitle us to execute the delivery only if the constraints in delivery are eliminated.

8.4  Constraints in delivery which last for more than 6 weeks and are not due to circumstances attributable to us entitle us to cancel the contract without any right to the purchaser to claim damages. In such case we reimburse immediately any payment made by the purchaser without interest. We inform the purchaser about the beginning and the end of such constraints in delivery in writing.

8.5  Our liability is excluded for any damages of whatever kind. This exclusion does not apply

–  to damages, which we have been caused deliberately or with gross negligence

–  in cases of minor negligence for damages, which are based on injury to life, body or health and for damages which are provoked by a breach of fundamental contractual. Fundamental contractual obligations are all obligations the fulfilment of which is essential for the excecution of the contract and on whose fulfilment the purchaser relies and can rely.

8.6  In cases of negligent breaches of fundamental contractual obligations on our side, our liability shall be limited to the damage that was foreseeable and typical for this type of contract, unless the liability affects damages to life, body or health.

8.7  Claims for compensation for damage due to minor negligence pursuant to Section 8.5 and 8.6 are excluded if the purchaser has not filed a respective statement of claim with the competent court within a period of three months subsequent to the rejection of the claims by us or our insurers. All claims against us based on minor negligence pursuant to Section 8.5 and 8.6 become time barred analogously to the time period fixed in Section 7.2.

8.8  The limitation of liability laid down in this Section 8 shall apply to the liability for our entities, employees and auxiliary persons as well as to their personal liability. The limitation of liability does not apply to claims under the law on product liability [“Produkthaftungsgesetz”] as far as our liability under this law is compulsory, and it does not apply to cases in which we have issued a guarantee on durability and/or quality.

The purchaser is not entitled to assign any claim against us to a third party without our prior written approval.