SP Automotive GmbH

Products

General Terms and Conditions for Purchases

§1 General Information

These terms and conditions of sale will be incorporated by an explicit agreement or, if such an explicit agreement is, due to the nature of sales or service agreement, difficult to enter in and the purchasers accepts these terms and conditions, by entering into the sales or service agreement. If the purchaser is an entrepreneur under sec. 14 German Civil Code (BGB) these terms and conditions of sale shall also govern all future transactions between the parties without any further incorporation agreement.

These terms and conditions of sale shall govern all expressions of intent and all legal declarations that refer to entering or executing any kind of sales or service agreement between SP Automotive GmbH and its purchasers.

§ 2 Conclusion of Contracts

All public or published offers of SP Automotive GmbH do not legally bind SP Automotive GmbH, unless otherwise agreed in writing. Any assignment by the purchaser or alterations therein shall be binding on the seller only after he has accepted the assignment in writing (also per fax or e-mail). If the goods are delivered immediately, the invoice may be considered as an order confirmation.

The supplier as mentioned on the face of this contract has fulfilled his obligations after having delivered the goods in quality and packing as per the contract – to the delivery point mentioned and in accordance with the statutes of the INCOTERMS, latest version.

The supplier has to provide the buyer with all necessary papers, proving that the quality meets the contractual agreements.

Other papers, charts or layouts needed, the buyer has to order them in writing (also per fax or e-mail).

The purchaser acknowledges that any or all products supplied under this contract may be or become or considered a hazardous material under various governmental laws and regulations and that purchaser or its agents are familiar with any hazards of the product and its applications and handling of the various modes that the product may be transported in.

§ 3 Copyrights

The copyright of all kind of documentation delivered to purchaser in executing a purchase contract shall remain at SP Automotive GmbH. Purchaser, however, may use the copyright as a licensee with the non-exclusive and the non-transferable right to use the products of SP Automotive GmbH.

§ 4 Prices and Payment

All agreed prices are fix prices. Prices are inclusive of the respective statutory VAT and inclusive of costs for packaging, except as otherwise expressly agreed upon.

SP Automotive GmbH is entitled to charge the purchaser with cost increases arising in the meantime if the period between order and proper delivery exceeds one month.

Unless otherwise agreed upon the agreed purchase price becomes due and payable within 10 days from receiving the invoice without any further note by SP Automotive GmbH.

If Letter of Credit is required, this Letter of Credit will always be subject to the final and continuing approval of the seller.

§ 5 Delivery/Default of Delivery

The agreed delivery date is only approximate and thus does not constitute a final or fatal delivery date. Exceeding a delivery date shall in no circumstances lead to liability on the part of the seller.

The seller shall advise the purchaser of the availability of the purchased goods. If the purchaser fails to provide transport or to accept the goods at the point of destination within two working days, the seller may, at his discretion, deem the agreement or part thereof to be cancelled, without prejudice to his right to demand damages from the purchaser, or he may store the goods or part thereof, or have them stored for the account and risk of the purchaser, and change any extra costs to the purchaser.

Occurrences of force majored – including public legal restrictions, strikes and lockouts – entitle us to withdraw from contracts. In such cases, no damages for breach of duty may be claimed. This also applies when, through no fault of our own, goods from our suppliers are late in arriving. We are obliged to inform the purchaser about such events without delay. If the delivery doesn’t occur longer than 2 months the buyer has right to stop the fulfillment of his obligations according to the contract.

Unloading and storing the goods is always the responsibility of the purchaser. For deliveries in tankers and mounted tanks, the purchaser is responsible for ensuring that his tanks or other storage containers are in technically perfect condition and is also responsible for the filling connections to his own storage system and, if necessary, ensuring that the recipient fulfills this obligation. The decision about the delivery form and way is the responsibility of SP Automotive GmbH.

§ 6 Passing of Risk

The transport risk from the site of delivery is always for the account of the purchaser. This also applies in cases where freight is prepaid or free domicile.

Where not in conflict with the other conditions in these Terms and Conditions INCOTERMS 2010 shall apply as applicable on the date of the contract of sale.

§7 Retention of title

The title to the goods (conditional goods) is first transferred to the purchaser upon full payment of the purchase price and all other debts including future debts arising from the business connection with us. This also applies if payments are made against specially designated debts. If an invoice is still outstanding the retained title shall serve as a security for the balance due to us.

As long as the purchaser correctly performs his obligations towards us he is authorized to further use conditional goods in normal business practice under the proviso that his claims from the resale are transferred to us.

If the purchaser fails to fulfill his payment obligations, even after being given more time, we are authorized to claim repossession of the conditional goods without granting further payment time and without notice of cancellation. If necessary, we are entitled to enter the purchaser’s premises for the purpose of seizing the goods.

Processing or conversion of the conditional goods is carried out on our behalf without putting us under any obligation. We are considered the manufacturer in the sense of § 950 BGB (German Civil Code) and acquire ownership of the intermediate and end products in proportion to the invoice value of our conditional goods to the invoice values of the third party goods; to this extent, the purchaser holds in safe custody, on our behalf and free of charge. The same applies to combination or mixing of conditional goods with third party goods in the sense of §§ 947, 948 BGB.

As security for all our claims, the purchaser hereby assigns to us any claims arising from resale of the conditional goods to third parties. If the purchaser sells goods of which we only have partial ownership, he assigns to us his claims against third parties in the corresponding partial sum. If the purchaser uses the conditional goods within the scope of a contract of work (or similar agreement), the purchaser assigns the corresponding claim to us.

In the normal course of business, the purchaser is entitled to collect claims arising from the further use of conditional goods. If facts come to our knowledge which indicate a significant deterioration in the purchaser’s financial situation, then, upon request from us, the purchaser must inform his customers of the assignment, refrain from disposing of the debts in any way, give us all the necessary information about his inventory of goods which are our property and the claims assigned to us, and shall provide us with the necessary documents to enforce the assigned claims. We must be informed immediately about any third party seizure of the conditional goods or the assigned claims.

§ 8 Liability for defects

Claims will only be taken into account if they are presented in writing and fully specified within 7 calendar days after delivery.

Purchaser is obliged to inspect the goods before using them. If the purchaser has no proof that an independent inspection approved by seller has taken place, he shall lose all rights to make a claim.

Once the goods have been used or re-sold they are deemed to have been accepted and no subsequent claims are possible. In the case of bulk deliveries transfer into a reservoir counts as acceptance.

The seller is in no way liable for damages or loss, in any form, if it is the result of improper and/or inexpert use of the goods supplied. The other party must be able to prove that the goods were used in proper manner.

The seller shall not be liable for damages sustained during loading or filling of the transport medium by the other party or by the other party’s personnel.

The seller is never liable for damage other than direct damage to goods, with due regard to the limitations set out in these conditions. Supplier will not be held responsible for loss of profit, consequential loss and smart money. The seller cannot be held responsible for mistakes made by other persons engaged by the seller. Seller does not guarantee the accuracy of the specifications supplied to him by his suppliers of goods sold or bought, and is never liable with regard to any inaccuracies in the specifications. The seller is never obliged to refund more than the invoice value of the goods.

The purchaser shall indemnify seller against all claims by third parties, whoever they may be, regarding damage and/or loss which might befall the third party in connection with the goods supplied or to be supplied by the seller.

If we provide consultation to the purchaser either verbally, in writing or through experiment, this occurs to our best knowledge however without own liability. Furthermore, this does not exempt the purchaser from the duty to inspect the delivered goods himself for suitability for the intended processes and purposes.

If the goods are delivered in packages the customer must in addition check the labeling of each individual package to ensure that it corresponds with the order. Moreover, before discharging, the purchaser must make sure that the contents correspond to the order by taking a sample according to usual commercial practice.

After justified notification of defect in due time, at our choice, we can either remove the defect or supply defect-free goods (supplementary performance). If the supplementary performance does not come about or is refused, then the purchaser may exercise his legally prescribed rights. If the defect is not substantial and/or the goods have already been sold, processed or transfigured, then the purchaser is only entitled to the right of reduction.

§9 General liability limitation and time limitation

Regarding the infringement of contractual and non-contractual obligations, in particular regarding impossibility, delay, culpa in contrahendo and tortuous acts, we are only liable - also for our executive managers and other agents - only in cases of deliberate intent and gross negligence, limited to the contract-inherent damage foreseeable when the contract was concluded. Otherwise, we exclude our liability for damages consequent to defects.

These restrictions are not applicable in case of culpable violation of substantial contractual obligations if the achievement of the objective of the contract is at risk, in cases of compulsory liability according to the Product Liability Act, in case of injury to life, person and health, and also if we have fraudulently concealed defects of the goods or guaranteed the absence of defects. Regulations on the burden of proof remain unaffected here.

Unless otherwise agreed, contractual claims that the buyer has against us, because of and in connection to the delivery of goods or our other services, expire one year after delivery of the goods. This does not affect our liability arising from intentional and grossly negligent breaches of obligation, culpably effected damage to life, body and health.

§ 10 REACH

If the purchaser notifies us of a use according to Article 37.2 of the Directive (EG) No. 1907/2006 of the European Parliament and the Council on registration, evaluation, authorization and restriction of chemical substances (REACH Regulation) which requires an updating of the registration or substance safety data report, or another obligation under the REACH Regulation, the purchaser bears all verifiable expenditure. We are not liable for any delivery delays resulting from the notification of this use and the fulfillment of the corresponding obligations according to the REACH Directive. In case, for reasons of health or environmental protection, it is not possible to include this use as an identified use, and should the purchaser intend, contrary to our advice, to use the goods in a manner we discourage, we can withdraw from the contract. The purchaser cannot deduce any rights against us from the above-mentioned regulations.

§ 11 Applicable law and arbitration

All contracts between purchaser and seller are subject to German law only.

Any disputes which may arise in connection to the contract between seller and purchaser will be settled by arbitration in accordance with the German Arbitration Institute.

Where not in conflict with the other conditions in these Terms and Conditions INCOTERMS 2010 shall apply including subsequent amendments as applicable on the date of the contract of sale.

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