T&C

STANDARD TERMS & CONDITIONS OF IMPREG INTERNATIONAL A/S

§ 1 General Basis of the Agreement
Sales and delivery are solely subject to the following Standard Terms & Conditions of iMPREG International A/S, Gersonsvej 7, DK-2900 Hellerup, hereinafter referred to as “iMPREG”. These Standard Terms and Conditions shall also apply to all future business transactions even if reference is not made to them in a particular instance.

The Purchaser’s own standard terms and conditions are not part of this Agreement even if iMPREG does not expressly object to them.

§ 2 Order confirmation, Subject of the Agreement
All offers remain subject to change until the order confirmation made has been issued in writing, subject to prior sale. The content of the written order confirmation is solely binding for acceptance of the Agreement and for the scope of delivery. Any supplements, modifications or additional agreements also require confirmation in writing to be effective. Waiving this formal requirement also requires written confirmation.

All orders are based on the assumption that the Customer has previously resolved all technical and commercial questions. Requests for changes made after the order can only be made against reimbursement of all incurring expenses.

Subject of this Agreement is the product as sold with its features and characteristics and the intended use as specified in the product description. Other or extended features and/or characteristics or an intended use above and beyond this one shall only be valid with the expressed written confirmation from iMPREG. References to standard commercial quality designations and samples do not constitute a liability for condition and/or durability. The same shall also apply to information about features of the goods in iMPREG processing instructions. Quality and durability guarantees in accordance with sec. 443 of the German Civil Code [BGB] shall be explicitly identified as such.

The conclusion of the contract shall be subject to iMPREG having received delivery from our suppliers in good order and in due time. This shall only apply in such cases where iMPREG is not responsible for non-delivery, in particular if iMPREG has concluded a congruent covering transaction with its own suppliers. The Purchaser shall be promptly informed of any non-availability of the performance. Any consideration already received shall be promptly refunded.

If the performance is carried out later than four months after the date of the conclusion of the Agreement, iMPREG shall be entitled to adjust its prices to reflect the increase in costs for labour and/or materials.

§ 3 Shipping
Delivery of the goods is ex-works and always for the Purchaser´s account and risk. This shall also apply to delivery at no charge to the Purchaser and when iMPREG’s own means of transport are used. This risk shall pass to the Purchaser upon the dispatch of the goods even for partial deliveries or where iMPREG has taken on other performances. In the event that the dispatch becomes impossible for iMPREG or the shipping agent and fault cannot be attributed to iMPREG, or is delayed , the risk of accidental loss and damage to the goods shall pass to the Purchaser upon receipt of the notice of readiness for dispatch. Insurance is only mandatory when agreed at the time of the placement of the order.

Charges shall only be made for packaging when the goods are shipped on crates or if the Purchaser requests special packaging. The Purchaser will be reimbursed at the agreed percentage rate of the invoiced amount once he has returned the crates at no charge to the seller in a usable condition and within two months. If rented containers are used, the Purchaser is responsible for the shipping costs; iMPREG will cover the rental charges.

Unsorted partial deliveries are only permissible with the Purchaser’s agreement.

The Purchaser is responsible for unloading the goods. The Purcher shall refund all additional costs caused by excessive unloading and waiting times. Any damages or losses during shipping are to be notified and logged immediately in the presence of the shipping agent or an employee of his. The Purchaser shall inform iMPREG immediately of this.

Should a pick-up be arranged, the purchaser is required to collect the goods within eight days of the declaration of the goods being ready to ship. In the event of a delay in collecting the goods, iMPREG is entitled to use its own discretion to store the goods at the Purchaser´s risk and expense and to charge a fair and reasonable storage fee. If the Purchaser ultimately fails to collect the goods, without being entitled to do so, he will be required to pay a one-off payment for damages amounting to 30 % of the invoiced amount.

The Purchaser is entitled to present iMPREG with evidence that no damage was caused whatsoever or that the damage was significantly lower in value than the one-off payment. We reserve the right to effect a higher payment for damage.

§ 4 Delivery schedule and arrears
Delivery deadlines/periods represent non-binding guidelines as parts of the production process are contingent upon third parties. The delivery periods (times) are calculated from the date of the order confirmation. These delivery deadlines/periods shall only be binding if they have been expressly specified as such in the order confirmation. Fixed transactions are not effected. iMPREG reserves the right to make partial deliveries should this appear to favour prompt processing of the order. Invoiced and performed partial deliveries must be regulated in the payment schedule as per paragraph 6.

The Purchaser can demand delivery from iMPREG within a fair and reasonable time two weeks after a non-binding delivery deadline or delivery period have passed. iMPREG shall enter into arrears upon receipt of this demand. If the Purchaser has claim to payment for a damage caused by delay, this claim shall be limited to 5 % of the agreed purchase price at the most based on the seller’s ordinary negligence.

If the deadline for performance as specified in paragraph 2 passes without a successful conclusion, the Purchaser shall be entitled to withdraw from the purchase agreement giving written notice and to demand payment for damages in lieu of the performance; this shall be limited to the typical damage that was foreseeable at the time of the conclusion of the Agreement based on ordinary negligence.

If by chance it becomes impossible for iMPREG to perform the delivery while it is in arrears, the company shall incur liability subject both to paragraphs 2 and 3 unless the damage would have also occurred had the product been delivered on time

If iMPREG misses a binding delivery deadline or binding delivery period, the company shall already be in arrears upon passing the delivery deadline or period. In this case the Purchaser’s rights will be decided by paragraphs 2 and 3 of this Agreement.

Claims due to a delay on delivery shall not apply if the delay can be attributed to reasons for which the Purchaser shall bear responsibility or which were caused by industrial action, war, fire, acts of sovereignty, traffic disruptions and other instances of force majeure. If the delay extends beyond three months, both parties shall be entitled to withdraw from the agreement after a fair and reasonable period of two weeks. The parties may only invoke the aforementioned circumstances upon notifying the other party without delay.

§ 5 Liability, Notice of defects
iMPREG provides a liability of one year for the purchase item, two years for consumers. The liability period begins on the date on which the purchase item is passed to the Purchaser or his vicarious agent. In the event of non-compliance with operating- or processing instructions, or if modifications were made to the products, if materials were exchanged or consumables used which do not correspond to the original specification, all warranties shall become void if the Purchaser does not disprove a suitably substantiated assertion that the defect was initially caused by one of these circumstances.

The Purchaser is required to notify iMPREG of any self-evident defects in writing within a preclusive period of two weeks after the handover of the goods.
If the Purchaser is a public law juridical person, special public law asset agency or a merchant for which the agreement forms part of his commercial enterprise, the Purchaser is required to inspect the purchased goods immediately upon delivery and to notify iMPREG of any defects found therein in writing and within a preclusive period of one week. If a defect later becomes evident which could not be detected during the inspection, the Purchaser is required to report this to iMPREG in writing and within a preclusive period of one week of discovering the defect. Otherwise sec. 377 of the German Commercial Code [HGB] shall apply.

As a matter of principle, iMPREG shall be given the opportunity to examine the complaints within the notice of defects in situ and in the original condition.

The failure to observe a preclusive period shall result in exclusion of the assertion of liability claims. Timely dispatch of the notice of defect shall suffice for compliance with the time-limit.

If the notice of defect is justified and submitted on time, iMPREG shall offer at its discretion to remedy the defect or deliver a fault-free replacement product at no charge to the Purchaser. If iMPREG fails to remedy the defect or to make delivery of a replacement product, the Purchaser retains the right to ask for a lowering of the price (reduction) or to withdraw from the Agreement (withdrawal). If the purchaser chooses to withdraw from the agreement due to a legal or material defect after the failure of a subsequence performance, he shall not be entitled to any claims for damages on account of this defect.

Defects in partial deliveries do not entitle the purchaser to refuse acceptance and payment of the parts of the delivery which are free from defects. If a lump-sum price was arranged, payment shall be made for the part of the delivery that was free from defects in accordance with the payment breakdown to be requested from iMPREG. Variations in quality, colour, width, weight or features or design which are customary within the trade or minor in nature may not be rejected. Liability for damages attributable to the fact that the goods could not be used for the purchaser´s intended purpose is excluded.

§ 6 Payment
The invoice is issued on the date the goods were delivered/made available. In principle a postponement of the invoice due date (settlement date) is excluded. Where there are grounds for a premature delivery for the purposes of the contractual partners, the implementing provisions can define exceptions to this rule.

Unless otherwise stipulated in writing, invoices are due and payable net within 30 days of issue.

Payment is to be made in cash, by cheque, bank transfer, giro or postal cheque. Cheques are only accepted on account of payment. The Purchaser shall be responsible for all extra charges in particular bank fees. No bills of exchange can be accepted.

Even if the purchaser’s terms and conditions state to the contrary, IMPREG is entitled to initially set off payments against older debts. The company will notify the Purchaser about the manner of settlement used. If costs and interest payments have already been incurred, iMPREG shall be entitled to initially set off payment against these costs, followed by the interest payments, followed lastly by the main performance.

If the Purchaser enters into arrears, iMPREG will be entitled to charge interest from the data in question at the rate of interest calculated by the commercial banks for outstanding revolving credits, or at least 5% for consumers and 8% if the Purchaser is a public law juridical person, special public law asset agency or a merchant for which the agreement forms part of his commercial enterprise. The Purchaser is entitled to present iMPREG with evidence that no damage caused by delay arose whatsoever or that the damage is significantly lower in value than the one-off payment.

In the event of a delay in payment or an essential deterioration of its assets, iMPREG can demand payment in cash before delivery for still outstanding deliveries from any current contract under discontinuance of the term of payment.

The Purchaser may only offset claims with counterclaims when these counterclaims are recognised by iMPREG or have been established by law. The Purchaser is only entitled to asset a right of retention that applies to the same contractual relationship. Miscellaneous deductions (e.g. for postage) are not permitted.

In any event, the data of the postmark shall be taken as the effective date of payment. For electronic bank transfers, the day before iMPREG’s bank is credited shall be taken as the effective date of payment.

§ 7 Retention of title
The purchase item remains the property of iMPREG until the demands accruing from the purchase agreement have been settled. The retention of title also remains in force for all claims against the Purchaser which iMPREG subsequently acquires in connection with the purchase item, e.g. due to repairs or the delivery of replacement parts or other performances. If the Purchaser is a public law juridical person, special public law asset agency or a merchant for which the agreement forms part of his commercial enterprise, this retention of title also applies for claims iMPREG has against the purchaser arising from their current business relationships.

If the Purchaser acts in violation of the contract – in particular when delaying payment – iMPREG is entitled to withdraw from the contract and to reclaim possession of the purchase item or where appropriate demand the surrender of the claims to return the goods which the Purchaser may have against third parties.

The Purchaser is permitted to sell on and/or process the product within the framework of normal business procedure. The Purchaser’s authorisation to process or surrender the goods subject to reservation of title within the framework of normal business procedure shall cease upon his non-payment or when insolvency proceedings are initiated against the Purchaser´s assets.

The Purchaser herewith assigns future claims from these disposals to iMPREG as a form of security and shall do so even to the extent that the goods have been processed. The surrender is limited to the invoiced amount of the goods subject to reservation of title which were processed into a new product. iMPREG herewith accepts this surrender. The Purchaser is entitled to collect amounts outstanding unless revoked. The Purchaser is entitled to collect the amounts outstanding subject to withdrawal. Based on our own requirements, the Purchaser is obliged to notify third party debtors of the surrender to us and to notify us of this notification and also to send us the documents containing information necessary for the collection of the amounts outstanding surrendered to us. If the value of the securities given to us sustainably exceeds our claims by more than 30 %, then we shall be obliged to release the excess securities upon request.

The Purchaser shall handle and process the goods subject to the reservation of title for iMPREG without iMPREG incurring any obligations. If the Purchaser joins, mixes, combines or processes the goods subject to reservation of title with other goods not owned by iMPREG , iMPREG shall be entitled to co-ownership of the thus created new goods in proportion to the invoice value of the goods subject to reservation of title to the other goods. If the Purchaser acquires full rights to the new product, he shall grant iMPREG co-ownership of the product and keep the product in safe custody for iMPREG at no charge. If the goods subject to reservation of title are further disposed of together with other goods, and the same shall also apply whether with or without joining, mixing, combining or processing them, the surrender herewith as agreed above shall only apply to the invoiced amount of the goods subject to reservation of title which were disposed of further with the other goods.

Pawning and conveyance of the goods subject to reservation of title or assigned claims is prohibited. Should third parties access the goods subject to reservation of title or assigned claims, the Purchaser shall bring their attention to the ownership of iMPREG whom he shall inform immediately.

The Purchaser is required, as soon as he suspended the payment, more precisely immediately after he notified that the payment has been suspended, to send iMPREG a specification concerning the existing goods subject to reservation of title, even to the extent that they have been processed, and a breakdown of the claims against third party debtors including credit notes.

Should iMPREG enter into contingent liabilities in the Purchaser’s interest, the expanded and extended right of retention shall remain until iMPREG has been fully released from these liabilities.

§ 8 Limitation of liability
In accordance with the following provisions, iMPREG assumes liability for damages – irrespective of the legal basis – if he, his legal representative or his vicarious agent is culpable for it.

In case of any breach of duty caused by minor negligence, our liability shall be limited to immediate average damage typical for this kind of agreement and foreseeable given the type of goods.

iMPREG shall not have any liability to contractors in the event of a breach of unessential duties caused by minor negligence.

The limitations to liability above are not applicable to the Purchaser´s claims from Product liability legislation. These limitations of liability also do not apply to claims arising from death and injury to body and health. Where the damage is covered by an insurance policy taken out by the Purchaser for this type of damage (does not apply to endowment policies), iMPREG shall only be liable for any associated detrimental effects to the Purchaser.

Any liability of iMPREG based on the Product Liability Act [Produkthaftungssgesetz] shall remain unaffected by any fault attributable to iMPREG.

iMPREG does not assume any liability for damages or impairments to performance based on force majeure.

§ 9 Place of performance, Place of jurisdiction and Applicable law
If the Purchaser is a public law juridical person, special public law asset agency or a merchant for which the agreement forms part of his commercial enterprise, the parties agree upon the single place of jurisdiction of Copenhagen for all disputes directly or indirectly arising from this contractual relationship and the location of the nearest trading branch of iMPREG as the place of performance.

This Agreement is governed by the laws of Germany excluding the United Nations Convention on Contracts for the International Sale of Goods.

All verbal or written agreements made prior to this Agreement are herewith invalidated. If any provisions of this Agreement are found to be invalid, the invalidity of such provisions shall not affect the validity of the remaining provisions or the entire legal transaction.

Only the German original wording of the General Delivery Terms and Conditions of iMPREG is legally binding.

iMPREG International A/S  04.02.2004