page 1 A.W. Faber-Castell Vertrieb GmbH General Terms of Sale and Delivery Version: 02/2012 1. Scope of application These General Terms of Sale and Delivery shall be exclusively applicable to all contracts and performances inclusive of any information provided and subsequent arrangements made unless expressly otherwise agreed upon in writing by us and the purchaser (hereinafter Purchaser ) of goods (hereinafter Goods ) delivered by us. 2. Offer and offering materials Any and all of our offers are non-binding. Our written order confirmation shall exclusively determine the scope and commercial value of performances and deliveries to be made. 3. Pricing Our prices are subject to change without notice. We shall be entitled to make priceadjustments, in particular if cost increases (e.g. higher material cost, wage rises, increase in inflation) affect our price calculation. Unless otherwise specified in our order confirmation or expressly agreed to otherwise by the parties in writing, our prices shall be on ex factory or ex ware-house basis exclusive of packaging and freight costs, duties and other ancillary costs yet plus value added tax if applicable. 4. Deliveries, Delivery Impediments, Alterations of Contract a. Our deliveries are made for the account and at the risk of Purchaser. In addition to these general terms, the INCOTERMS of the International Chamber of Trade and Commerce/Paris in their current version shall apply. b. Delivery dates or periods shall be considered not binding and approximate only, unless expressly stipulated as fixed in writing. In any event a delivery period begins to run only when all issues of technical nature have been clarified. Supplementary orders shall be deemed as new orders. c. We shall be entitled to make deliveries in installments. d. In case of force majeure, restraints under public law or in the event of strikes and lockouts, we shall at our sole choice be entitled either to prolong the delivery periods agreed or to rescind the respective contract. In such events, Purchaser shall not be entitled to claim damages based on non-performance or default. The same shall apply if deliveries are not made by our suppliers on time unless we are at fault and can be held liable therefore. In such cases and if fixed delivery dates are agreed, Purchaser solely has the right - after granting us a reasonable period of respite - to rescind the contracts concerned. e. If Purchaser is partly or wholly in default of acceptance or with any other obligation to co-operate, we shall have the right to claim damages including additional
page 2 expenditures, if any Further, the risk of accidental loss, destruction or deterioration shall then immediately pass to Purchaser. f. If products are exclusively manufactured upon the specific request of and/or to specifications set by Purchaser, we reserve the right to modify delivery quantities by up to a maximum of ten percent (10%) of the overall order quantity. g. Goods are sold solely in our original factory packaging. We shall not be required to make any changes to the appearance of Goods, in particular of packaging by using blister- or skin-cards of Purchaser or third parties. If smaller lots are ordered than those specified in our minimum lot sizes delivery scheme, we shall be entitled to increase order quantities to the next bigger lot size without notice to Purchaser. h. We reserve the right to choose - at our sole discretion - a forwarder/parcel service for the dispatch of the ordered Goods. 5. Terms of payment, Rescission on Grounds of Deterioration of Financial Situation a. Unless otherwise expressly agreed in writing, our invoices shall become due and payable within eight (8) days with a two percent (2%) swift payment discount, at the latest within thirty (30) days of the date of invoicing without any discount or deduction. In the event that Purchaser fails to pay any sum to us on or after the due date thereof, the amount owed shall bear interest at a rate of eight percent p.a. (8 % p.a.) above the base interest rate as defined under Section 247 of the German Civil Code (BGB), and which is published by the German Central Bank (Bundesbank), applicable on the relevant agreed payment date without us being required to give further notice to Purchaser. Our right to claim additional damages caused by such default shall remain unaffected thereby. In the event of delivery in installments, we shall be entitled to invoice Purchaser on a pro rata basis. b. Money orders, checks, promissory notes and the like shall only be accepted subject to actual and definite crediting to our accounts and all collection, handling and discounting fees shall be borne by Purchaser. Any and all discounts and rebates granted to Purchaser shall be subject to complete and correct acceptance of deliveries and to timely payment. If shipments are returned, the respective discounts and rebates already granted shall be debited from Purchaser s account. c. If Purchaser does not pay the purchase price for the Goods ordered or repeatedly does not meet its payment obligations on time, or if we become aware of a substantial deterioration in its financial soundness according to objective banking standards of assessment, we shall be entitled to unilaterally revoke all previously granted payment terms, to declare all payment obligations of Purchaser immediately due and payable, and/or at our choice to rescind all existing agreements with Purchaser, to only execute any future deliveries against an irrevocable Letter of Credit on terms determined by us or to require prepayment in full for any future deliveries.
page 3 6. Warranty a. Purchaser shall upon receipt of each shipment immediately inspect the Goods concerned and shall notify us in writing of any alleged defect thereof within a time period of eight (8) days from receipt of the Goods. If substantial defects in material or workmanship are of a hidden nature and consequently cannot be detected by Purchaser within the foregoing deadline upon due and diligent inspection of the Goods, such notification shall be made within eight (8) days from detection of any such defects. In case the above-required notices are not given in writing within the specified time limit by Purchaser to us, the warranty for the concerned defect(s) shall be statute-barred and no warranty shall then be assumed by us. b. Notwithstanding the above, our warranty shall expire at the latest two (2) years after delivery of the Goods. This restriction shall not apply in the case of fraud on our part. c. If notice of any defects has been given to us on time as specified hereinabove, we will inspect and examine the allegedly defective Goods as soon as possible. Until such time, Purchaser shall keep and store the concerned Goods with the care of a diligent trader and whilst respecting relevant storage specifications, if any. d. If and to the extent that the alleged defects or damages prove after our examination to be justified, we shall be entitled at our sole discretion and choice to either repair the defective Goods, to exchange the defective Goods by shipping faultless Goods to the Purchaser or to take back the Goods in question. e. The above terms shall only apply insofar and to the extent, as they do not conflict with applicable mandatory laws. f. In case Goods delivered to Purchaser have not been manufactured by us but have been obtained from our suppliers, we shall fulfil our guarantee obligation by assigning all our claims against such suppliers to Purchaser, who accepts such assignment on account of performance. 7. Retention of Title and other Securities a. We shall retain title to the Goods delivered by us until payment in full has been made for all and any claims resulting from the respective contract and the overall business relationship with Purchaser including all ancillary claims and charges. b. Goods sold with our express approval to Purchaser for the purpose of resale shall be sold on condition that Purchaser does upon resale assign all claims he may have against such third parties to us in the amount of the respective purchase price plus ancillary cost and interest rates, if any. In the course of current account transactions, such retention of title and assignation of claims shall serve as security for any debit balance in our favor.
page 4 c. Without our express prior written approval Purchaser shall not be entitled to mortgage or grant any lien to the said Goods, or to transfer these by way of security to a third party. In the case that third parties attach security interests to Goods or claims in our property or assigned to us hereunder, Purchaser shall immediately inform us by using the most expedient way of communication (such as facsimile message, etc.). d. Unless expressly otherwise agreed upon between Purchaser and ourselves the former shall upon sale or any other disposal of said Goods be obliged to notify the receiving third parties of the retention of title. Subject to our revocation, Purchaser shall have the right and shall be obliged to collect the outstanding amounts of all claims against such third parties which have been assigned to us on our behalf. In particular if we become aware of a substantial deterioration in Purchaser s financial soundness, we shall be entitled to revoke Purchaser s right and obligation to collect such sums and to collect ourselves the payments assigned. e. Purchaser hereby expressly agrees that our activities in this regard shall not be interpreted as unlawful interference with the possessions of another and that we shall have access to all warehousing facilities and offices of Purchaser to the extent required to enforce our rights; Purchaser undertakes to fully co-operate with us in this context. f. If the value of all securities for which we obtained or retained the title, calculated at cost-price, exceeds the respective claim by more than twenty percent (20%), we shall be obliged upon request of Purchaser to release at our sole discretion the respective securities in whole or in part accordingly. In the course of current business relation accounts, the foregoing percentage shall apply to all claims we have against Purchaser. 8. Limitation of Liability a. In the case of slight negligence, our liability, including that of our employees, workers, staff members, representatives, or in general any person employed by us in performance of our obligations including any other person entrusted with covenants and duties which relate to the business relationship with Purchaser, shall be limited to product-specific foreseeable, typical, direct and immediate losses or damages. We shall further not be liable for any breach of non-essential obligations under the relevant contract due to slight negligence. b. The above shall not impair our liability under mandatory applicable laws which require us to accept extended liability or responsibility. Neither shall the above apply for personal injuries or loss of life of Purchaser which are attributable to culpable acts or omissions by us. c. Purchaser s claims for damages based on the defectiveness of Goods shall be statute-barred one (1) year after delivery of the concerned Goods. The foregoing shall not apply in case of gross negligence on our part or personal injuries or loss of life of Purchaser which are attributable to culpable acts or omissions by us.
page 5 d. We shall by no means be liable for materials, component parts, active ingredients, prescriptions, recipes and compounds, representations and warranties, freight specifications or manufacturing instructions provided by or obtained from Purchaser. We shall not be obliged to examine the foregoing items with regard to their conformity with product liability laws and/or any other mandatory applicable legal provisions. Purchaser shall fully indemnify and otherwise hold us harmless against any and all claims raised by third parties against us, including any losses, claims for injury and damage, costs and expenses or legal fees. 9. Return Shipments a. Any and all return shipments ( Returns ) which are not caused by us are subject to the prior written approval of our field service or our service team located at our headquarters. Without such approval, we are entitled to refuse any such Returns. b. In the event that we accept a Return, we shall be entitled to deduct a handling and processing fee of ten percent (10 %) of the price we invoiced for the returned Goods when crediting Purchaser. c. We shall only accept Returns of such Goods which were ordered within the past three (3) months (calculated from the date of our invoice). d. Goods which are not listed in our current price lists for specialized retailers or whose appearance has been changed will not be accepted as Returns. 10. Severability a. The invalidity or unenforceability of one or several of the terms and provisions set forth in these general terms or in other contracts between the parties shall not affect the validity of the remaining terms. b. The invalid or unenforceable term shall then be replaced by the parties hereto with a legally valid term whose contents come as close as possible to the economic purpose originally intended and pursued with the invalid or unenforceable term. 11. Place of performance, venue and applicable Law a. Unless otherwise agreed upon in writing, the exclusive place of performance for all obligations, covenants and deliveries for both parties hereto shall be our headquarters in Stein, Germany unless the nature of the specific matter mandatorily requires a different place of performance. b. The Local Court of Nuremberg/Germany respectively the District Court of Nuremberg- Fuerth/Germany shall be the exclusive place of venue for all disputes which may arise from or relating to our business relationship with Purchaser, unless another applicable place of venue is mandatorily and exclusively given. At our sole discretion we shall equally have the right to bring action against Purchaser at any other court that may be competent to rule upon the concrete case matter pursuant to applicable national or international law. c. The business relationship between Purchaser and ourselves including any and all existing agreements, disputes and dealings, as well as these General Terms shall be exclusively governed by the substantive laws of the Federal Republic of Germany without
page 6 regard to any conflict-of-law principles. The United Nations Convention on the International Sale of Goods (CISG) shall not apply unless mutually agreed upon and confirmed in writing. 12. Personal Data In compliance and within the limits of existing data protection regulations we shall be entitled to process and store personal data received from Purchaser. Further use of Purchaser s personal data shall only be made with his prior approval.