General Terms and Conditions of Delivery and Payment of HALFAR SYSTEM GmbH

§1 Scope

1. All deliveries of goods and services provided by us to businesses, legal entities under public law, or special funds under public law are governed exclusively by the terms and conditions set out herein below.

These terms and conditions, even if not expressly referred to in an individual case, shall also govern any and all future transactions of the above-mentioned kind.

2. These terms and conditions do not apply to consumers acting within the meaning of section 13 of the German Civil Code (BGB, hereinafter referred to as “German Civil Code”).

3. Terms and conditions of purchase or any other terms and conditions of business of our contractual partner – hereinafter referred to as “Buyer” or “Purchaser” – are hereby expressly objected to. Such other terms and conditions are not binding upon us even if we fail to explicitly reject such terms and conditions when entering into a contract.

4. The requirement of written from under these terms and conditions is deemed to be met by giving notice in textual form, including without limitation by fax or e-mail.

5. The application of paragraph 1 sentence 1 items 1 to 3 and sentence 2 of section 312i of the German Civil Code (general obligations in electronic commerce) is excluded.

§2 Prices / Offers

1. All prices are EXW (Bielefeld) as per Incoterms 2010, plus value-added tax at the legal rate. Freight, packaging, and insurance are not included and are charged separately.

2. Our offers and all and any parts thereof are subject to change without notice and become binding only if accepted by Buyer without changes or if confirmed by us in writing or upon fulfilment of the order.

The presentation of our products or services in our online shop does not constitute a legally binding offer on our part but is merely a request to Buyer to make an offer.

3. Unless expressly agreed otherwise in writing, our prices are per piece in euros.

4. If the minimum value of goods per order is not reached, we may charge a markup for small-volume purchases as per the valid price list.

5. Any increases in costs which are based solely on subsequent changes made at Purchaser’s request after approval for production, printing or embroidery will be charged to Purchaser.

6. Minor deviations from the specifications (dimensions, materials, colours, weights, illustrations, descriptions, drawings) given in any of our catalogues and price lists may occur especially with regard to the rendering of colours in the catalogue and the final product; samples can be obtained at request in order to check an item for the desired requirements. Further provisions regarding potential deviations are laid down in paragraph 3 of Section 8 herein below.

We reserve the right to make technical and visual changes, changes in the product range, and/or changes for the purpose of a product update in a form reasonably acceptable to Buyer without prior notice.

7. In individual cases we may reserve the right to adjust our prices if the period between the date of our offer and the execution of the order is over four months and prices have to be adjusted for foreign exchange rate fluctuations or because there have been increases in costs of supplies, production, assembly, personnel, delivery, or other cost increases such as changes in raw material prices. Purchaser is entitled to terminate the contract if such an increase is in excess of 10% of the agreed price. Purchaser shall be responsible for any expenses for costs of labour and materials.

§3 Delivery / Passage of Risk

1. Delivery of goods shall be ex-works [EXW (Bielefeld) as per Incoterms 2010]; Purchaser shall bear the cost and risk of delivery.

2. Buyer shall also bear the costs of delivery and the transport risk if, by way of exception, we do not deliver in accordance with the provisions of Section 1 herein above but, for instance, carriage free.

Unless otherwise agreed in the relevant purchase order, we reserve the right to choose the shipping method and the shipping route. Transport insurance shall be taken out only on special request and for the account of Purchaser.

3. We are entitled to dispatch reasonable part shipments. Part shipments are invoiced on the basis of the value of each part shipment and shall be paid by Purchaser in accordance with the provisions of Section 5 herein below.

4. Buyer is not entitled to make a claim for overdeliveries and underdeliveries of up to 5% which may occur for technical reasons.

§4 Delivery Times / Delivery Dates

1. The specified periods and dates of delivery and the delivery deadlines are approximate dates only. Fixed date transactions require express confirmation.

2. The delivery period starts on the day on which we receive the order, however not before clarification of all details which are necessary for fulfilment of the order (e.g. artwork, imposition layout, colour details etc.). In the event that an advance payment of part or all of the purchase price has been agreed, the delivery periods do not start until we have received the agreed payment. If payment is not made as agreed, the delivery periods and delivery dates are reasonably extended.

3. Off-the-shelf orders and blanket purchase orders are deemed to be firm orders with an obligation to purchase; in such cases, delivery of agreed call-off quantities must be taken within 12 months of the initial delivery unless other periods have been agreed during the term of the agreement. We are entitled to deliver and invoice any outstanding partial quantities not delivered within the time limit.

4. In the event of default in acceptance or debtor’s default on the part of Purchaser, the risk of accidental loss and/or accidental deterioration of the goods passes to Purchaser at the time when Purchaser defaults on acceptance. We are entitled to grant a reasonable extension of time after the expiry of which we are entitled to store any goods not collected or not accepted at Purchaser’s cost. The aforegoing does not affect our right to cancel the contract and to claim damages for non-performance.

5. In the event of any delays in delivery caused by force majeure, riots, strike, lockout, raw material shortage, or by a business interruption for which we are not responsible, including a business interruption at one or more of our providers, the time of delivery is extended by not less than the period of time required to remedy such interruption, provided that the interruption affects the production or delivery of the delivery item. We shall notify the Buyer as soon as reasonably possible of the beginning and end of any such events.

In case of a permanent business interruption caused by force majeure, riots, strike, lockout, shortage of raw materials or a business interruption for which we are not responsible, or in the event that we have, through no fault of ours, failed to receive the supplies ordered from our own supplier(s), Buyer and/or we are entitled to rescind the contract in whole or in part, without such rescission giving rise to any claims for compensation. In the event of rescission, any payments made in advance shall be reimbursed as soon as reasonably possible. The party to the contract that wishes to rescind the contract in accordance with the provisions herein above shall do so by giving two (2) weeks’ notice of termination. A permanent business interruption as defined herein above is assumed to have occurred if the interruption continues for more than five (5) weeks.

6. Delivery is subject to our punctual and faultless receipt of goods from our own supplier(s). We shall notify Buyer of any such obstructions as soon as reasonably possible. We are not liable for delayed, omitted or non-conforming deliveries insofar as such delayed, omitted or non-conforming deliveries are attributable to our own supplier(s), provided that we are not at fault. Without prejudice to other provisions, this applies on condition that we have entered into a concrete covering transaction.

7. Customer’s right to claim damages for default in delivery is governed by the provisions in Section 8(a) hereof.

§5 Payments

1. Unless otherwise provided in writing, our invoices are due and payable immediately. Any cash discounts and payment dates agreed apply only to the purchase order actually confirmed and do not justify an extension of the due date for payment.

2. Payments are credited first against the oldest outstanding balance. Cheques and bills of exchange are accepted as conditional payment only and at no additional costs or expenses for us.

3. In case of default in payment we are entitled to charge late-payers interest at the statutory rate. The right to assert claims for greater damages caused by default is not excluded as a result of the above.

4. If Buyer – for whatever legal reason – defaults on payment, including payment by bill of exchange or by cheque, or if Buyer suspends its payments, all our outstanding accounts become due and payable immediately, regardless of any longer payment deadlines that may have been granted in an individual case.

5. Discounts are granted only if all due and uncontested receivables from previous deliveries have been satisfied.

6. Buyer is not entitled to offset any counterclaims or to assert a right of retention unless such offsetting or retention is based on the same legal relationship or on the provisions of section 320 of the German Civil Code or unless said claims are undisputed or have been finally decided by a competent court of law.

7. If Buyer suffers any major deterioration in its financial circumstances which jeopardises our claims from the respective legal relationship, we are entitled to demand cash in advance or adequate security. This also applies if such circumstances existed prior to the making of the contract but became known to us only afterwards.

If, notwithstanding a reminder having been sent and reasonable extension of time granted, the advance payment or security are not provided within the grace period granted, we are entitled to rescind the contract and to claim damages, including without limitation damages in lieu of performance. In the cases specified above, payment or provision of security cannot be made contingent on the return of current bills of exchange.

§6 Retention of Title

If, upon delivery of any item, we have already received full payment for such item, title to that item shall pass to Buyer upon delivery thereof to Buyer, unless otherwise agreed in the individual case.

If we provide services up front – i.e. if delivery of the goods takes place at a time at which we have not yet received the consideration or part of the consideration due for the relevant goods (“Reserved Goods”) – the following provisions shall additionally apply:

1. We reserve legal ownership of all Reserved Goods delivered by us until full payment of their purchase price and until all our claims resulting from the business relationship – including any contingent liabilities (including without limitation claims for payment by cheque or bill of exchange) – and claims from contracts made subsequently and/or existing for any legal reasons whatsoever, have been paid.

2. In the event that such retention of title becomes valid only if recorded in special registers and/or subject to certain other legal requirements, Buyer shall ensure that such requirements are duly met. Buyer shall bear all costs resulting from such measures taken.

3. Buyer shall be entitled to process and/or resell the goods in the ordinary course of business; provided, however, that Buyer is not in default regarding its duties towards us and provided further that Buyer does not suspend payments. More specifically, the following provisions apply:

a) Any processing or transformation of the Reserved Goods shall be carried out on our behalf in our capacity as manufacturer within the meaning of section 950 of the German Civil Code, but without obligation for us. Processing or transformation of the Reserved Goods does not give Buyer legal ownership of the newly created item.

If the Reserved Goods are processed or mixed, blended or combined with other items, we acquire co-ownership of the resulting new item in proportion of the invoice value of our Reserved Goods to the total value of the item.

The provisions applicable to the Reserved Goods apply equally to any co-owner’s shares created under the foregoing provisions.

b) Buyer hereby assigns to us all claims from any resale or other disposal transactions, including without limitation from contracts for works, labour and material, together with all ancillary rights, including pro-rated rights insofar as the Reserved Goods have been processed, mixed or blended and we have obtained co-ownership in such products in proportion with our invoice value or to the extent that the Reserved Goods have been permanently incorporated therein. To the extent that the Reserved Goods have been processed, mixed or blended or permanently incorporated, such assignment entitles us to a primary fraction of the claim from the resale corresponding to the proportion between the invoice value of the Reserved Goods and the invoice value of the product.

In the event Buyer sells the Reserved Goods together with other goods supplied by a party other than ourselves, Buyer hereby undertakes to assign to us a primary share in the claim resulting from the resale equal to the invoice value of the Reserved Goods.

In the event that Buyer has sold such receivables within the scope of a non-recourse factoring transaction, Buyer hereby undertakes to assign to us the substitute receivables Buyer may claim from the factor. In the event that Buyer places the claim from the resale under an open account relationship with the Buyer’s customer, the Buyer hereby undertakes to assign to us Buyer’s claims from the open account relationship in the amount of the invoice value of the Retained Goods.

Such assignment encompasses not only payment claims but also, without limitation, claims for surrender, including without limitation in the event that Buyer also resells goods subject to retention of title.

c) We hereby accept the above assignments.

d) Buyer has the right to collect any claims assigned to us until we revoke such right. The right to collect claims ceases when revoked; revocation is effected if Buyer is in arrears or suspends payment. The same applies if Buyer suffers a major deterioration in its financial circumstances, thus putting at risk our claims. In such cases we have Buyer’s permission to notify customers of the assignment and to collect the receivables ourselves.

e) Upon our request, Buyer shall submit to us a detailed list of the receivables due to Buyer, including the names and addresses of customers, the amount of each of such receivables, the invoice date, etc., and shall provide us with all information and documents required for the assertion of the receivables assigned to us and shall permit us to verify the information provided.

f) Any sums of money received by Buyer on the basis of claims assigned to us shall be separately deposited to our credit until remitted.

g) Pledging or transfer by way of security of the Reserved Goods or of the claims assigned is not permitted. Buyer shall notify us immediately of any order of attachment, specifying the name of the attaching creditor.

h) If the value of any security due to us exceeds the total claim against the Buyer by more than 10%, we shall, at the Buyer’s request, release excess security.

i) In the event of Buyer’s default in payment or suspension of payments we are entitled to take back the Reserved Goods, subject to any legal requirements that may apply. We are entitled to use at our discretion any Reserved Goods taken back for our satisfaction.

j) Buyer shall hold the Reserved Goods in safe custody for us. Buyer shall take out customary insurance to cover the Reserved Goods against the usual risks such as fire, theft, and flooding. Buyer hereby undertakes to assign to us any claims for compensation due to Buyer, from any insurance agency or from any other liable person, for any damage or loss of the above type in the amount of our claims against Buyer. We hereby accept the above assignment.

§7 Release of Finishing Contracts; Third-party Intellectual Property Rights

1. Proofs, printing samples or embroidery samples are binding for serial production; prior to their release, Buyer shall check such proofs and samples for imposition errors, printing defects, colour defects, and other errors and shall release such proofs and samples and/or inform us of any changes in writing. Any changes or corrections requested orally or by phone must be confirmed in writing.

2. Major changes, resetting of artwork, reprogramming of embroidery programs, or other changes beyond the usual scope (together referred to as “Changes”) requested after the creation of production samples will be charged to Purchaser if the sample previously submitted by Purchaser deviates from the changes.

3. Printing samples and embroidery samples will be charged even if the order is cancelled.

4. Purchaser shall ensure that any designs capable of protection under intellectual property law (i.e. trademarks, works subject to copyright etc.) ordered by Purchaser and to be provided by us on / in our products do not violate any third-party rights. We are under no obligation to verify whether or not Purchaser holds the necessary third-party rights.

§8 Warranty

We are entitled to rework or replace, at our option, defective goods free of charge. The place of subsequent performance is our registered office. The foregoing is without prejudice to the provisions of section 377 of the German Commercial Code (HGB).

Any parts replaced become our property. In the event that we have to rectify any defects, we shall bear all costs and expenses necessary for such rectification, including without limitation costs of transport, travel, labour, and materials; provided, however, that such costs are not increased by moving the purchased item to a place other than the destination originally agreed on; Buyer’s rights under paragraph 3 of section 439 of the German Civil Code are not affected thereby.

Minor, technically unavoidable, deviations in quality, colour, width, weight, design and/or attachment of the logo do not constitute a defect. All printing methods used may result in minor deviations within the production run or between the proof and serial production.

Notwithstanding the above, Buyer has the right to pursue any other legal remedies available and to cancel the contract and to reduce the purchase price provided that the relevant legal requirements have been met. Claims for damages are governed exclusively by the provisions in Section 8a herein below.

§8a Liability

Unless provided otherwise herein below, and subject to legal requirements having been met, we are liable for damages in the event of negligent breach of a material obligation (fundamental breach of contract) on our part; provided, however, that our liability for damages is limited to compensation up to the amount of the typical and foreseeable damage incurred. Material obligations are those obligations the fulfilment of which is of the essence for the contract and the performance of which Buyer may rely on in the due course of business; and material obligations also include those obligations the violation of which would endanger the purpose of the contract.

Buyer is fully entitled to claim compensation in the statutory amount from us in accordance with the legal provisions if damage or loss has been caused by us or by one of our legal representatives or vicarious agents and is based on

• culpable injury to life, body or health, or

• intentional or grossly negligent breach of duty, or

• mandatory legal provisions concerning liability (e.g. the Product Liability Act or data protection law) or

• violation of an obligation arising from a procurement risk assumed or a guarantee given.

Any other compensation claims asserted against us, our legal representatives or agents are excluded, whatever their legal grounds may be.

The legal provisions regarding the burden of proof remains effective.

§8b Statute of Limitations

1. Buyer’s claims based on quality defects shall expire by limitation within one year unless:

(a) the product delivered by us is an item that is integrated into a building in accordance with the intended use of such item and has caused a defect in such building, or

(b) the defect was fraudulently concealed or is due to intentional breach of duty on the part of ourselves or any of our legal representatives or vicarious agents, or

(d) such claims are claims for damages, or

(e) such claims are claims in accordance with section 445(a) of the German Civil Code.

The cases listed in paragraphs (a) to (d) herein above are subject to statutory periods of limitation.

The statutory limitation periods also apply if the last contract in the supply chain relates to a purchase of consumer goods within the meaning of section 474 of the German Civil Code (including without limitation where the final purchaser, as a consumer, buys an item from a merchant); in all other cases (i.e., without a consumer being involved as the final purchaser), the limitation period shall be fourteen (14) months.

2. The legal provisions on suspension, interruption, and beginning and recommencement of the statute of limitations apply.

3. In cases of defects in title, items (1) and (2) hereof are applied mutatis mutandis.

Section 9 Copyright / Legal Notice / Manufacturer's Identification / Samples

1. By placing an order for finishing, Purchaser declares that Purchaser is entitled and/or has obtained the consent of the trademark owner to reproduce the relevant trademark. Purchaser warrants that use of the trademark does not violate any third-party rights and shall indemnify us and hold us harmless from and against all disadvantages arising therefrom. We are under no obligation to verify that no violation has occurred.

2. Subject to other agreements to be laid down in writing, we retain all rights of use based on copyright and all rights based other intellectual property rights with regard to all procedures performed and with regard to all intended purposes.

3. Unless otherwise agreed, Purchaser is not entitled to use any samples, models, drafts, sketches, drawings, collages, images, originals, films and/or embroidery programs – insofar as they are capable of protection under intellectual property law on whatever legal grounds, such as copyright laws – for any purpose other than the contractually agreed purpose.

Samples entrusted by us to Purchaser exclusively serve to initiate a contract between Purchaser and ourselves. Unauthorized disclosure to third parties is prohibited and is governed by section 18 of the Law Against Unfair Competition (UWG).

4. We reserve the right to present our brand symbol or trade mark on the inside of the products or in a suitable location of the products made by us. We also reserve the right to use products made on behalf of clients as illustrative samples or for our own advertising purposes.

§10 Credit Check

1. We wish to point out that before entering into a contract we generally have a credit risk assessment performed by business information services based on mathematical / statistical methods (currently: (1) Creditreform Riegel & Unger KG, Sunderweg 3, 33649 Bielefeld, and IHD Inkasso GmbH, Augustinusstrasse 11 b, 50226 Frechen) (“scoring”). For this purpose, company data/ personal data is transmitted to the business information service insofar as such data is necessary to carry out the credit check (company name and address; if Purchaser is a sole trader, Purchaser’s name is transmitted. To our privacy statement.

2. Collection, storage and disclosure is therefore carried out for purposes of a credit check to avoid any default in payment and on the basis of the provisions of Article 6(1)(b) of the GDPR and Article 6(1)(f) of the GDPR.

3. Based on that information, the statistical likelihood of a credit default, and therefore your solvency, is calculated. If a credit check is carried out and the result is negative, a contract can be made only subject to an individual assessment and further individual negotiations.

§11 Choice of Law / Partial Nullity / Place of Performance and Jurisdiction; Applicable Law

1. The contractual relationship is governed by German law without effect to conflicts of laws principles and excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

2. In the event that any of the provisions of these terms and conditions are or become invalid, the remaining terms shall continue in full force and effect.

3. The place of our registered office is the place of performance and the place of subsequent performance for all deliveries and services.

4. If Buyer is a fully qualified merchant within the meaning of commercial law or a legal entity under public law or a special fund under public law or if Buyer has no general place of jurisdiction within Germany, the competent courts of Bielefeld have jurisdiction over any disputes arising from our contractual relationships. If Buyer’s registered office is outside the Federal Republic of Germany, we are entitled to also pursue our claims against Buyer at Buyer’s general place of jurisdiction.

Last updated: 1 August 2019

Halfar System GmbH

Ludwig-Erhard-Allee 23

33719 Bielefeld

Germany