General Terms and Conditions

Translation notice: This English translation is provided for convenience only. In the event of any discrepancy or ambiguity, the German-language version shall prevail.

(As at 17 April 2008) – ISOKLINKER Purchase Agreement

I. General provisions

1. Our terms and conditions apply to all present and future transactions within the Federal Republic of Germany, even if we do not object to deviating purchasing terms or counter-confirmations, which we hereby expressly reject. They shall be deemed agreed at the latest when the customer accepts the goods or services.
2. Supply contracts, other agreements and any deviations from these terms and conditions require our written confirmation in each individual case in order to be valid. Order confirmations are legally effective even when reproduced and not signed by us. If no written confirmation is issued, the order shall be deemed accepted when the goods are handed over to the buyer or the respective carrier.
3. Our products are marketed domestically under protected trademarks. Our products may be exported only with our prior consent. Where the customer resells the goods as a reseller, the customer shall pass on this obligation.
4. Our silence in response to legally relevant declarations made by the buyer shall never constitute consent.
5. Our customers’ personal data shall be stored and processed in accordance with Sections 23 to 25 of the German Federal Data Protection Act (BDSG) within the scope of the purpose of the contractual relationship.
6. Where we perform construction work, the German Construction Contract Procedures (VOB), Part B, shall apply unless these terms and conditions provide otherwise. Any building permits required must be obtained by the buyer at the buyer’s own expense.

II. Offers, prices and samples

1. Unless an offer is expressly declared binding in writing, either in whole or in part, it shall be non-binding for the supplier. Prior sale is reserved.
2. If prices have not been confirmed, the list prices valid on the date of delivery shall apply. All prices are exclusive of value added tax. Goods may be returned for credit only with our express approval and subject to return costs amounting to 17.5% of the credited value.
3. Samples and specimens are provided solely as non-binding illustrations. Minor deviations from our offer or sample in size, quality and colour are reserved.

III. (Partial) delivery and transfer of risk

1. Delivery times are approximate only. A delivery date shall in all cases be deemed met if the ordered goods are ready for dispatch within the agreed period. We accept no liability for the goods arriving at the buyer’s premises on time.
   
   Partial deliveries and partial services, including construction work, are permitted. Following completion, instalment payments for such partial services shall be payable within eight days of the invoice date without any cash discount. The customer may demand further performance only after all due claims, irrespective of their legal basis, have been settled.
2. Events of force majeure entitle us to postpone production and delivery for the duration of the impediment plus a reasonable restart period, or to withdraw from the contract in respect of the unfulfilled part. This also applies to operational disruptions caused by machine failure, shortages of operating materials or raw materials for which we are not responsible, and delays caused by suppliers.
3. Deliveries, including deliveries free to the construction site or free to the warehouse, are made at the buyer’s risk, provided that the access road is suitable for trucks with a total weight of up to 38 tonnes. Risk passes to the buyer when loading begins at our works, even in the case of partial deliveries or where the supplier still owes installation services. If, at the buyer’s request, delivered material is not merely set down at ground level but is moved elsewhere at or onto the property, neither we nor any forwarding agent or carrier engaged shall be liable for resulting damage. This applies to both property damage and personal injury.
4. Goods not accepted on time shall be stored at the buyer’s expense and risk. In such cases, we are entitled to charge the list prices applicable at the scheduled delivery date.

IV. Complaints (defects, loss or incorrect delivery)

1. Where goods are collected by the customer, obvious defects and other complaints must be recorded in writing on the receipt immediately upon acceptance at the delivery point. Where goods are dispatched, complaints must be entered on the receipt and/or consignment note before unloading and handed to the carrier. In the case of rail transport, an official railway damage report must additionally be arranged.
   
   If the customer fails to give notice, or resells, processes or installs the goods despite knowing of the defect, the defect shall be deemed accepted without reservation.
2. Measures taken by us to mitigate loss shall not constitute an acknowledgement of a defect.

V. Warranty

1. If the goods supplied are defective, the buyer shall initially be entitled to demand subsequent performance within a reasonable period. We shall determine the nature and manner of subsequent performance, in particular whether the defect is to be remedied or replacement goods are to be supplied.
   
   If an attempt at subsequent performance fails, we shall be entitled to carry out a further attempt within a reasonable period, again selecting the nature and manner of performance. If the repeated attempt also fails, the buyer may withdraw from the contract or reduce the purchase price.
2. The buyer may claim damages only in cases of grossly negligent or intentional breach of duty. The same applies to reimbursement of futile expenditure. This limitation does not apply where cardinal obligations, meaning essential contractual obligations, have been breached; in that case, claims for damages are not restricted or excluded.
   
   The buyer’s or customer’s rights arising from a guarantee assumed by the supplier or from a defect fraudulently concealed are not restricted.
   
   No guarantees are assumed unless an express written agreement to that effect has been concluded with the buyer.
   
   Liability for injury to life, limb or health remains unrestricted insofar as the supplier is responsible for the injury.
3. Warranty claims may be asserted only if:
   1. our goods have been handled and stored properly;
   2. installation, laying and assembly carried out by the customer have complied with the applicable trade rules, guidelines, standards, approval requirements and our installation recommendations; and
   3. any damage identified has been reported to us without delay and we have been given an opportunity to inspect the property and assess the defect.
4. Where we undertake construction work, the warranty provisions of the German Construction Contract Procedures (VOB), Part B, shall apply. In all other respects, the statutory warranty periods shall apply.
5. Samples and specimens are non-binding illustrations only. Clinker bricks are natural ceramic products; consequently, the supplied bricks may show minor variations in size, quality and colour, as well as minor differences in surface texture.

VI. Payments

1. Payment for the goods to be supplied must be made net in cash before handover, unless different payment terms have been agreed in advance. We may at any time demand security for due claims arising from all existing transactions and refuse performance until such security has been provided.
2. Payments shall be made exclusively to the payment offices specified on the invoice. We reserve the right to accept bills of exchange. Bills of exchange and cheques shall be deemed payment only after they have been honoured. If bills of exchange are accepted, stamp duties and the discount charges specified by us shall be borne by the customer and shall be payable immediately upon submission.
3. Complaints shall not affect compliance with the agreed payment terms. The customer is therefore not entitled to withhold due payments or set them off against counterclaims disputed by us or not finally established by a court.
4. Acceptance of an order presupposes the customer’s creditworthiness. If, after confirmation of the order, the customer’s creditworthiness appears doubtful, confirmation by a bank or credit agency shall be sufficient evidence and shall entitle us to withdraw from the contract or demand immediate cash payment. The customer may not demand production of the credit report.
5. If the customer defaults in payment or acceptance, we may, without prejudice to our other rights and without further notice, charge default interest at the discount rate of the Deutsche Bundesbank plus 4%, but at least 7% per annum. In the event of default, claims not yet due shall also become payable immediately without deduction.

VII. Retention of title

1. All goods supplied shall remain our property until all claims arising from the business relationship with the buyer, including ancillary claims, have been paid in full and all bills of exchange and cheques have been honoured. The buyer must keep the goods carefully on our behalf and, at our request and at the buyer’s expense, store them separately, mark them or return them to us.
   
   The buyer shall be liable for any reduction in value, our return costs and lost profit and waives claims arising from possession. Our repossession of the goods shall not constitute withdrawal from the contract.
2. The buyer may sell goods owned by us in the ordinary course of business. This authority shall lapse if the buyer is in default or agrees with its customer that claims are non-assignable. The buyer may not resell the goods in fulfilment or in lieu of fulfilment.
3. If the buyer processes or manufactures our reserved goods, the buyer shall not acquire ownership under Section 950 of the German Civil Code (BGB). The new item created by processing shall be deemed reserved goods belonging to us within the meaning of these terms and conditions.
4. In the event of resale, whether before or after combination, mixing, processing or manufacture, the buyer hereby assigns to us all claims arising against its customers, including remuneration for work, together with all ancillary rights and securities, up to the value of our respective ownership share.
   
   At our request, the buyer must disclose the assignment and inform us of the names and addresses of the third-party debtors and the amounts of the claims.
5. The buyer is revocably authorised to collect the claims assigned to us, provided the buyer is not in default. Assignment to third parties is not permitted.
6. The buyer is not entitled to pledge the goods or transfer them by way of security. The buyer must notify us immediately of any attachment of our sole or co-ownership by registered letter or, in urgent cases, by telegram or telephone.
7. If the value of the existing securities exceeds the secured claims by more than 20% in total, we shall, at the customer’s request, release securities of our choice to that extent.

VIII. Copyright and technical information

1. We reserve copyright in illustrations, drawings and other documents supplied by us.
2. Technical information and implementation proposals are provided as part of our customer service, taking account of applicable building regulations and recognised construction practice, to the best of our knowledge. The customer remains fully responsible for checking that the ordered goods and proposed implementation are suitable for the intended use. Our advice is non-binding and liability for it is excluded.
   
   We are entitled to modify the technical data of the ordered delivery item insofar as this is reasonable for the customer.

IX. Damages in the event of withdrawal or termination before production

1. If either contracting party withdraws from or terminates the contract before delivery due to circumstances for which the buyer is responsible, the supplier may claim a lump-sum amount equal to 20% of the order value as compensation for lost profit, unless the supplier proves a greater loss.
   
   Once production at the works has begun, or after dispatch from the works, withdrawal from the contract is no longer possible.
2. The customer may prove that a lower loss, or no loss at all, has occurred.

X. Place of performance and jurisdiction

1. The place of performance for all obligations arising from the contract is the seller’s registered office.
2. The courts at the seller’s registered office shall have jurisdiction over all disputes arising from deliveries and payments. This also applies to disputes involving bills of exchange and cheques.
3. This contract and its effects shall be governed exclusively by the law of the Federal Republic of Germany. The laws governing the international sale of movable goods and the conclusion of international contracts for the sale of movable goods are excluded.

XI. Severability

If any provision of these General Terms and Conditions is wholly or partly invalid, the legal validity of the remaining provisions shall remain unaffected.