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THG Titan-Halbzeug GmbH

General Delivery Terms and Conditions and Scope

1. Terms and conditions of payment

Exclusively the following Terms and Conditions of Sales and Delivery shall apply to all our sales and other deliveries of products and rendering of services. Any terms and conditions to the contrary or contrary confirmations by the customer shall only obligate us if we expressly agree to such in writing. Any failure on our part to respond to such contrary terms and conditions shall not be deemed to constitute recognition or consent. Any such contrary terms and conditions of the customer are herewith expressly rejected.

2. Conclusion of agreement, scope of agreement

a) Our offers are subject to change without notice. An order shall only be deemed to have been accepted when we have confirmed acceptance in writing or when we have delivered goods. In the event we effect delivery immediately, however, our invoice may serve as a replacement for written confirmation of order.

b) Subsidiary agreements and assurances shall only be effective if we have expressly approved such in writing.

c) The scope of delivery shall depend on our written confirmation. The supply of a greater or lesser quantity is allowed within the framework of that which is commonly allowed. Any reference to standards, similar technical rules, other technical information, description and illustrations of the object being delivered in offers shall only constitute a service specification and not any pledge as to features. Certain features or goods shall generally only be deemed to be pledged by us if we have expressly confirmed such in writing.

3. Prices

a) Prices offered do not include costs of packaging, freight and transport insurance ex works or warehouse if nothing to the contrary has been agreed upon.

b) Prices are calculated according to the piece numbers, weights or lengths determined at the works or our warehouse.

c) If costs of an order change significantly following the conclusion of an agreement, the parties to the Agreement shall agree upon an adjustment in the price.

4. Delivery period

a) Binding delivery dates must be expressly agreed upon in writing. In the event of non-binding or approximate (e.g. rough, approximately, etc., our note) delivery dates we shall endeavour to meet such deadlines to the utmost of our abilities.

b) Delivery dates shall commence with receipt of our confirmation of order with the customer, but not prior to all details relating to the execution of the order have been resolved and all other prerequisites have been fulfilled by the customer.

c) If we become late in effecting delivery, the customer must set a reasonable grace period. After expiry of the grace period, the customer may withdraw from the Agreement if the customer is no longer interested in fulfilment of the Agreement.

d) If calls are not placed or partial consignments assigned in due time in the case of delivery agreements on call, we shall be entitled after a grace period has expired without delivery being effected to assign such partial consignments ourselves and to deliver the goods or to withdraw from the part of the delivery Agreement which is late.

e) We shall not be deemed to be late as long as the customer is late in complying with obligations towards us including obligations emanating from other agreements.

5. Force majeure, other impediments

a) If we do not receive deliveries or services rendered by our upstream suppliers, such deliveries or services are incorrect or not provided in due time, or if force majeure occurs for reasons for which we are not responsible, we shall be entitled to postpone the delivery for the period of such impediment or to withdraw from the part of the agreement which has not yet been fulfilled either in whole or in part. Force majeure shall be deemed to include strikes, lock-outs, intervention by government authorities, shortages in energy and raw materials, transport bottlenecks, impediments to operations without any culpability (e.g. as a result of fire, water or damage to machinery) and all other impediments which from an objective perspective have not been caused by us in a culpable manner.

b) If a delivery date has been bindingly agreed upon or the agreed-upon delivery date is exceeded by more than 6 weeks as a result of events set out under sections 1 or 2, the customer shall be entitled to withdraw from the part of the agreement which has not been fulfilled.

6. Review procedures, acceptance

a) The customer shall inform us if the customer desires that we conduct the checks and reviews required. The type and scope of the checks and reviews shall be agreed upon by the conclusion of the agreement.

b) If acceptance is desired, the scope and conditions are to be stipulated before conclusion of the agreement. Acceptance shall be carried out at the expense of the customer without undue delay following notification of readiness for acceptance at our delivery works. If acceptance is not carried out, not carried out in due time or not carried out in complete form, we shall be entitled to ship the goods or to store the goods at the expense and risk of the customer. The goods shall then be deemed to have been accepted.

7. Shipping and transfer of risk

a) Goods for which notification of readiness for delivery has been provided shall be called up and accepted immediately. If we undertake to effect shipping, we shall select the means of transport and the transport route as we see fit if and to the extent we have not received any special instructions from the customer.

b) Risk shall be transferred to the customer with the transfer of the goods to be delivered to the customer, the freight forwarder, the shipping company or any enterprise which may have been hired to effect shipment, but no later than upon leaving the works or the warehouse. This shall also apply if we are effecting delivery. Transport damage shall be recorded on the delivery note immediately. We shall only cover transport insurance if a special order is placed for such and only at the expense of the customer.

c) If goods which are ready for shipment are not called up and accepted immediately, we shall be able to ship the goods as we see fit or store such at the expense and risk of the customer. The same shall apply if in the event of a sale on call the customer fails to specify and call up the goods within a period of 2 months and no agreement to the contrary has been made. We shall also be entitled to store goods if the shipment we have undertaken cannot be carried out for reasons for which we are not responsible.

d) If the customer fails to take deliveries in time or fails to call up such in due time in the event of a sale by call-up or delivery is delayed for reasons for which the customer is responsible, we shall be entitled after having set a grace period of 14 days to demand immediate payment of the purchase price. Instead of this we may also withdraw from the agreement or, in the case of a sale according to call-up, from the unfulfilled part of the Agreement following expiry of the grace period or to reject fulfilment of the agreement and to demand damages for non-performance.

8. Terms and conditions of payment

a) If nothing to the contrary is agreed upon, our invoices shall be paid net without reductions and the money received in our account within 30 days of the invoice date. The following shall apply to initial orders and orders valued at less than DM 1000: net promptly. These invoices are to be paid immediately without any reductions. After invoices become due interest on arrears amounting to 5% above the respective base interest rate of the European Central Bank shall be charged. This shall not affect any additional claims resulting from arrears on payment.

b) We shall only accept bills of exchange if special agreements are made and only on account of payment. Bills of exchange may only be accepted if they have been duly subjected to taxation and can be discounted. They shall be accepted with all liability on our part being excluded. The day on which we are able to dispose over the equivalent amount shall be taken in determining whether the bill of exchange has been provided in due time and in conformity with requirements relating to submission and act of protest, credit notes for bills of exchange and checks subject to receipt and minus bill charges and expenses.

c) If we become aware of any facts or circumstances which from a business perspective cast doubt on the creditworthiness of the customer, and including such facts or circumstances which were already present upon the conclusion of the agreement but which we were not aware of or should not have been aware of, we shall be able to make all receivables emanating from the business relationship due including those receivables which have been cancelled or for which we have accepted a redeemable bill of exchange due immediately. We shall only be required to carry out deliveries which have yet to be effected or services which have yet to be rendered in return for advance payment or reasonable collateral being provided. If the customer fails to settle amounts due during a grace period which we set, we shall be entitled to refuse to effect delivery or render service or demand compensation for non-performance or withdraw from the Agreement. Moreover we shall be entitled to prohibit the resale of goods which we hold title or co-title to and demand such goods be returned to us or that we be conceded co-title at the expense of the customer. Such demand shall not be deemed to constitute withdrawal from the agreement if such is allowed by law.

d) The customer shall only have a right to retain or set off amounts due with regard to counterclaims which are undisputed or which have been recognised by a court of law. We retain the right to set off amounts even if mutual claims are denominated in different currencies. The average exchange rate at the Frankfurt foreign currency exchange on the date that such set-off is declared shall be deemed to apply.

9. Reservation of ownership

a) We shall retain the title to all goods delivered by us until all of our claims against the customer emanating from our business relationship including any claims which take effect in the future under agreements which are concluded later and including any claims to recourse or rights of indemnity emanating from bills of exchange and checks have been satisfied. This shall also apply to a balance in our favour if individual or all claims of ours have been included in an account current and the balance has been drawn.

b) Processing of goods to which we reserve title of ownership shall be on our behalf as manufacturer as set out in § 950 of the German Civil Code without however subjecting us to obligations. If our goods are processed or mixed with other goods which do not belong to us in a manner which no longer allows such to be separated, we shall obtain co-title to the new object in the ratio of the invoice value of our goods compared to the invoice values of the other goods being processed or mixed with our goods. If our goods are linked to other movable objects to form an integral object which is to be deemed to be the principle thing, the customer transfers the same ratio of co-title to us already here and now. The customer shall keep such property or co-property on our behalf free of charge. The co-title rights which come about as a result thereof shall be deemed to constitute conditional commodities. The customer shall be required to provide us with information we require to pursue our title or co-title rights at any time upon our request.

c) The customer shall be entitled to resell the goods supplied in regular commerce. The customer shall not be entitled to dispose over the goods in any other manner, in particular pledging or concession of the goods as collateral property. If the goods for which we reserve ownership are not paid for immediately by third parties when they are resold, the customer shall be obligated for its part to only resell such goods subject to reservation of ownership. Entitlement to resell and further process shall automatically cease if the customer discontinues effecting payment or falls into arrears in payment to us.

d) The customer herewith cedes all claims to us here and now which the customer receives towards end customers or third parties including collateral and subsidiary rights which the customer receives from or in connection with the resale of the goods to which we reserve ownership. The customer shall not be allowed to make any agreements with its customers which exclude or impinge upon our rights in any manner whatsoever or which negate the advance cession of claims. In the event that conditional commodities are sold with other objects, the claim against the third party in the amount of the delivery price agreed upon between the customer and ourselves shall be deemed to have been assigned if the amounts accounted for by the individual goods cannot be determined on the base of the invoice. In the event that co-title is sold in the form of conditional commodities, the claim from such resale shall be deemed to have been assigned to us to the amount of our co-title.

e) The customer shall be entitled to collect the claims assigned to us up until we object to such, which we shall be allowed to do at any time. If we so request, the customer shall be obligated to provide us the information and documents we require to collect assigned claims and to inform its customers of such assignment to us if we do not do so ourselves.

f) The customer shall notify us without undue delay if the customer has already assigned claims emanating from the resale of the goods delivered or to be delivered by us to third parties, in particular as a result of a real or unreal factoring or other agreements as a result of which our current or future collateral rights under section 9 could be impinged upon. In the event of unreal factoring, we shall be entitled to withdraw from the agreement and to demand the goods which have already been delivered be turned over. The same shall apply in the event of real factoring if the customer is not able to freely dispose over the purchase price for the claim under the agreement with the factor.

g) In the event that the customer violates the agreement, in particular if the customer falls into arrears on payment, we shall be entitled to take back all conditional commodities. The customer shall in such case automatically be obligated to turn over such goods to us. We shall be able to enter the business offices to determine the status of the goods we have delivered at any time during normal business hours. Taking back conditional commodities shall only be tantamount to withdrawal from the agreement if we expressly declare such in writing or such is stipulated under mandatory statutory provisions. The customer shall authorise us to use the goods taken back as we see fit or, if such is not possible within a reasonable period of time, to junk such goods and credit any proceeds to money owed to us minus any costs which arise. The customer shall notify us in writing without undue delay in the event of third parties receiving access to the conditional commodities or claims assigned to us.

h) If the value of the collateral as set out under the preceding section exceeds the secured claims by more than 10%, we shall be obligated to release collateral worth a commensurate amount as we see fit if so requested by the customer.

i) If these agreements concerning collateral are not effective in the country in which the conditional commodities are located, any and all other provisions governing collateral as security allowed under the law of such country which provides us the collateral as security as required shall be deemed to have been agreed. The purchaser shall be obligated to take all measures required which are required for the purchaser to create and maintain such rights.

10. Notice of defects and warranties

a) The customer or a recipient identified by the customer shall examine the goods without undue delay after receiving them. Notice of defect – including the absence of pledged features – shall be issued without undue delay, but no later than 14 days after the goods are received in writing. After the expiry of 14 days, claims may no longer be made for defects which would have been recognisable by careful examination of the goods. Notice shall be provided of other defects immediately after such are identified. If a formal acceptance is carried out in accordance with the agreement, which is to be performed at our delivery works or in our warehouse, no claims can be forwarded any longer for defects which were recognisable in the case of immediate examination. If the customer does not carry out the agreed-upon acceptance or fails to do such in good time, the provisions of the preceding section shall apply.

b) In the event of justified notices of defect, we shall be obligated to supply non-defective goods in replacement or rectify such defect free of charge as we see fit. Any claim on the part of the customer to transformation (withdrawal) or reduction in the purchase price is excluded.

c) If we fail to meet the obligation to rectify defects or supply non-defective goods, the customer may withdraw from the agreement after having provided us a reasonable grace period. The same shall apply if an attempt at subsequent rectification has failed and it is not reasonable for the customer to expect additional attempts at rectification or if subsequent rectification and delivery of a replacement is not possible.

d) Any further claims to damages by the customer as a result of or in connection with defects or damage from defects regardless of the legal reason for such shall only apply in accordance with the stipulations of section 11 if such do not involve damage claims emanating from the pledge of features which are aimed at protecting the customer against the risk of any damage from defects. In this case as well we shall only bear liability for damage which is typical and foreseeable.

11. Exclusion and limitation of liability

a) We shall only bear liability in the case of minor negligence with respect to a violation of important obligations jeopardising the purpose of the agreement for all claims to damages directed at us as a result of culpable violations of an agreement, regardless of the legal reasons for such, in particular due to impossibility, delay, defective delivery, positive breach of contract, violation of obligations in contractual negotiations, torts and product liability. Any liability on our part for minor negligence is furthermore excluded. Damage from defect is expressly excluded.

b) We shall only bear liability for typical, foreseeable damage in the event of liability under number 11a and liability without culpability, in particular with respect to original impossibility and defect of title.

c) The buyer shall decide himself under his own responsibility whether to use goods supplied by ourselves and other services. If we have not provided written confirmation of specific features and suitability of products for a contractual purpose, any consulting on technical usage shall always be non-binding. Nor shall we bear liability as set out under number 11 a for consulting which has been provided or which we have failed to provide which does not relate to the features and the ability to use the product supplied.

d) The exclusion of liability set out in sections 11a – 11c shall apply to the same scope to the benefit of our institutions, statutory representatives, executive and non-executive employees and other parties hired to carry out the agreement.

e) The aforestated provisions set out under sections 11a – 11d shall not apply if claims are forwarded against us under the Law pertaining to Liability for Defective Products (Product Liability Act – Produkthaftungsgesetz).

12. Place of performance and legal venue

The place of performance for all contractual obligations is the registered offices of our company. The exclusive legal venue for all disputes including lawsuits in a bill of exchange and check procedure is the court having jurisdiction over our registered offices. We shall also be entitled, however, to file suit at the court having general jurisdiction over the customer.

13. Applicable law

Exclusively the law of the Federal Republic of Germany shall apply to the legal relationship between the customer and ourselves. Uniform purchasing law based on the international purchasing rights agreement, in particular uniform law pertaining to the conclusion of purchase agreements (Hague Purchasing Convention) and the United Nations Convention on Contracts for the International Sale of Goods shall not apply.

14. Partial invalidity

In the event individual contractual stipulations are not valid, this shall not affect the remaining stipulations, which shall retain their full effect. Any invalid stipulations shall automatically be deemed to be replaced by provisions which come as close as possible to the meaning and purpose desired with the invalid clause if such is legally possible.