General Terms and Conditions of Sale (“GTC”)

Mitsubishi Chemical Group Corporation (EMEA)
(REF: GTCS-EMEALEG-07-25-v1)

General Terms and Conditions of Sale (“GTC”) of Mitsubishi
Chemical Group Corporation (EMEA) (REF: GTCS-EMEALEG-07-
25-v1)

1. Definitions and Interpretation

1.1. Definitions:

Offer: refers to a non-binding offer for the Supplies.
Order Confirmation: the binding written confirmation of the Buyer’s order by the Seller.
Special Terms: any special terms agreed between the parties that are included in the Purchase Agreement, or, if there is no Purchase Agreement, any special terms agreed in writing between the parties.
“Bribery”: any payment or transfer of value or any other payment generally regarded as improper and/or any act that violates the US Foreign Corrupt Practices Act, the UK Bribery Act, or equivalent laws of an OECD member state or any other country.
Order: the Buyer’s order for the Supplies.
Data Protection Laws: (a) the UK GDPR or the EU GDPR; (b) the EC Directive on privacy and electronic communications (Directive 2002/58/EC); (c) the Data Protection Act 2018; (d) the Privacy and Electronic Communications (EC Directive) Regulations 2003; and (e) all other applicable national implementing laws and regulations in any jurisdiction relating to or affecting the processing of personal data, in each case as amended from time to time.
“EU GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679).
“UK GDPR” means the EU GDPR as implemented by the European Union (Withdrawal) Act 2018 and as amended from time to time, including the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2020).
Services: as defined in the Purchase Agreement or, if there is no Purchase Agreement, any Services specified in writing to be provided by the Seller to the Buyer, or any Services related to the supply of Products.
Buyer: as defined in Appendix 1 of the Purchase Agreement or, if there is no Purchase Agreement, as agreed in the Order.
Purchase Agreement: a written agreement between the parties entitled “Purchase Agreement” relating to the sale and purchase of the Supplies.
Supplies: Products and/or Services (if applicable).
Parties: refers to the Seller and the Buyer together and each individually as a “Party”.
Personal Data and Processing of Personal Data: terms having the meanings set out in the Data Protection Laws.
Products: as defined in the Purchase Agreement or, if there is no Purchase Agreement, any Products specified in writing as Products to be sold by the Seller to the Buyer.
Specifications: the specifications for the Products and/or Services as defined in the Purchase Agreement or, if there is no Purchase Agreement, as agreed in writing between the parties.
Seller: as defined in Appendix 1 of the Purchase Agreement or, if there is no Purchase Agreement, as agreed in the Order.
Contract: the agreement between the parties which includes (as applicable) these GTC, the Order, the Purchase Agreement and any Special Terms.
Permitted Percentage Surplus or Shortfall: the percentage referred to in Clause 5.9.

1.2. Interpretation:

1.2.1. A person includes a natural person, a legal person or an unincorporated body (whether or not having separate legal personality).
1.2.2. A reference to a party includes its personal representatives, successors and permitted assigns.
1.2.3. A reference to laws or statutory provisions is a reference to such laws or provisions as amended or re-enacted.
1.2.4. A reference to laws or statutory provisions includes all subordinate legislation made under such laws or provisions.
1.2.5. Any words following expressions such as “including”, “include”, “in particular”, “for example” or similar expressions are to be construed as illustrative and shall not limit the meaning of the words preceding those expressions.
1.2.6. A reference to “in writing” or “written form” excludes faxes, but includes emails unless expressly stated otherwise.

2. General Provisions and Scope

2.1. These GTC apply to:
2.1.1. all sales of Products and provision of Services (if applicable) by the Seller to the Buyer;
2.1.2. the Contract to the exclusion of all other terms which the Buyer seeks to impose or incorporate or which are implied by law, trade custom, trade usage or course of dealing.

2.2. Practices or amendments to these GTC are only valid if made in writing and signed by the Seller; this also applies to amendments to the written form clause.
2.3. The Seller reserves the right to amend these GTC upon reasonable notice to the Buyer.
2.4. Appendix A to these GTC applies if German law is applicable.
2.5. Appendix B to these GTC applies if French law is applicable.
2.6. Appendix C to these GTC applies if Italian law is applicable.
2.7. Appendix D to these GTC applies if Swiss law is applicable.

3. Offer, Order and Order Confirmation

3.1. An offer by the Seller is non-binding and may be amended or withdrawn at any time.
3.2. Unless otherwise stated therein, an offer expires if the Buyer does not place an Order within fourteen (14) days of the date of the offer.
3.3. Any acknowledgement of receipt of an Order is an acknowledgement of receipt only and not an Order Confirmation.
3.4. An Order is binding on the parties only when either (a) an Order Confirmation has been issued, (b) the Products have been delivered, or (c) performance of the Services has commenced, whichever occurs first.

4. Prices and Payment Terms

4.1. Unless otherwise stated in the Purchase Agreement or an Order Confirmation:
4.1.1. prices do not include delivery costs, VAT, other taxes and duties (if applicable) at the statutory rate;
4.1.2. payments must be made within thirty (30) days from the invoice date in the same currency and to the bank account indicated on the invoice;
4.1.3. cash discounts, prepayment discounts or other discounts do not apply.

4.2. If the Buyer fails to pay on time, it shall pay interest at a rate of 8 percentage points above the European Central Bank base rate from the due date or, if lower, the highest interest rate permitted under applicable law. The Seller is entitled to claim collection costs and further damages.

4.3 The Contract is negotiated on open payment terms. However, the Seller reserves the right to change these open payment terms if: (a) in the Seller’s reasonable assessment, the Buyer’s creditworthiness changes materially; and/or (b) economic conditions change materially; and/or (c) the Buyer is in default of payment. In any such case, the Seller reserves the right to require advance payment for all Orders or future Orders.

4.4 The Buyer shall make all payments due under the Contract without any deduction, whether by set-off, counterclaim, discount or otherwise.

4.5 If the Buyer, or any company within the same group as the Buyer, is in default of payment obligations to the Seller or any company within the Seller’s group in respect of Supplies provided under the Contract (or under any contract between these groups), the Seller may, at its discretion, suspend any discounts, cash discounts or other special terms agreed with the Buyer until payment is received.

4.6 During each contract year, the Buyer shall provide the Seller with a copy of its published annual financial statements on the day of publication or as soon as possible thereafter. If the Buyer is not required to publish annual financial statements, it shall annually provide the Seller with a copy of its profit and loss statement and balance sheet signed by a director or duly authorised senior officer and the Buyer’s accountant. The Seller must receive the profit and loss statement and the balance sheet no later than six (6) months after the end of the Buyer’s financial year. For the avoidance of doubt, this means that if the annual financial statements contain information up to and including 31 December, they must be received by 30 June of the following year.

5. Delivery and Delivery Times

5.1. Unless otherwise stated in the Purchase Agreement or an Order Confirmation, deliveries shall be made FCA INCOTERMS 2020.
5.2. The delivery time is indicative, not binding and does not constitute a fixed-date transaction.
5.3. The Seller shall not be liable in any way for delivery delays.
5.4. Partial deliveries are permitted.
5.5. The Seller’s delivery obligations are subject to the Buyer’s timely and proper fulfilment of its obligations.
5.6. If the Buyer delays or refuses acceptance of delivery, the Seller shall be entitled to (i) invoice the costs incurred in connection with the delivery and any additional expenses and (ii) claim damages.
5.7. Subject to Clause 5.9, the Buyer undertakes to pay for the quantity of Products delivered.
5.8. A surplus or shortfall in the agreed quantity of Products shall not entitle the Buyer to reject the Products solely because of such surplus or shortfall.
5.9. Clause 5.8 shall not apply if the surplus or shortfall: (i) exceeds the percentage stated in Appendix 1 of the Purchase Agreement; or (ii) if not stated in the Purchase Agreement, exceeds 10% of the quantities specified in an Order Confirmation. In this case, the Buyer shall pay for the Products in accordance with the Order Confirmation.

6. Force Majeure

6.1. The Seller’s obligations, including deliveries, shall be suspended in the event of force majeure, including, but not limited to, wars, natural disasters, pandemics/epidemics, strikes, lockouts, operational disruptions, shortages of labour and raw materials, transport delays and governmental orders (including embargoes or sanctions) preventing or delaying the production, transport, delivery or performance of Supplies. This also applies if the Seller’s suppliers, subcontractors or affiliated companies are affected by any of the above events. If delivery becomes permanently impossible due to a force majeure event, the Seller is entitled to withdraw from the relevant Order (or at the Seller’s discretion from the Contract) without being obliged to pay damages. For clarification: this Clause 6 also applies in the event of impacts on Supplies related to EU export control laws (and the applicable laws of the individual member states), the United Kingdom, Japan, the USA, or other affected countries or states.

7. Title and Risk

7.1. The risk of loss or damage in relation to the Products shall pass to the Buyer in accordance with the applicable Incoterms.
7.2. Title to the Products shall not pass to the Buyer until:
7.2.1. the Seller receives full payment (in cash or cleared funds) for the Products delivered by the Seller to the Buyer; in which case title shall pass at the time of payment of all such amounts; or
7.2.2. the Buyer resells the Products; in which case title shall pass at the time specified in Clause 7.5.

7.3. After delivery and until title passes to the Buyer, the Buyer shall:
7.3.1. store the Products separately from all other goods of the Buyer so that they remain readily identifiable as the Seller’s property;
7.3.2. not remove, deface or obscure any identifying marks or packaging on or relating to the Products; and
7.3.3. maintain the Products in satisfactory condition in accordance with the Seller’s documents and guidelines and insure them, from the date of delivery, on the Seller’s behalf against all risks for their full price.

7.4. The Buyer shall provide the Seller with all information that the Seller may reasonably request from time to time regarding:
7.4.1. the Products; and
7.4.2. the Buyer’s current financial position.

7.5. Subject to Clause 7.6, the Buyer may resell or use the Products in the ordinary course of its business (but not otherwise) before the Seller has received payment for the Products. However, if the Buyer resells the Products before that time:
7.5.1. it does so on its own behalf and not as agent for the Seller; and
7.5.2. title to the Products shall pass from the Seller to the Buyer immediately before the time at which the resale by the Buyer occurs.

7.6. At any time before title to the Products passes to the Buyer, the Seller may:
7.6.1. by written notice restrict the Buyer’s right under Clause 7.5 to resell or use the Products in the ordinary course of its business; and
7.6.2. require the Buyer to deliver up all Products in its possession that have not been resold or irrevocably incorporated into another product, and if the Buyer does not do so promptly, enter any premises of the Buyer or any third party where the Products are stored in order to recover them.

7.7. To the extent that the national law applicable where the Products are located requires further steps for the validity of the retention of title, for example registration in a register, the Buyer shall carry out such steps at its own expense and provide the Seller with evidence thereof.

8. Warranty

8.1. The Seller warrants that:
8.1.1. the Products comply with the Specifications at the time of manufacture; and
8.1.2. the Services shall be performed with reasonable care and skill, if applicable, in accordance with the Specifications.

8.2. The Seller gives no other express or implied warranty for Supplies, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose and non-infringement of third-party rights. References to standards or similar rules, information in safety data sheets, information on the usability of Supplies and statements in advertisements are neither warranties nor representations. The same applies to declarations of conformity. In particular, identified uses under the REACH Regulation [EC] No. 1907/2006 neither constitute a contract for a corresponding contractual quality nor a contractually agreed use.

8.3. The Buyer shall inspect the Supplies immediately upon receipt for quality defects, damage or quantity discrepancies and notify the Seller in writing no later than five (5) days after receipt, stating the order details, invoice and batch number. Other defects must be notified to the Seller no later than five (5) days after their discovery. If the Seller is not notified of defects in due time, the Supplies shall be deemed approved by the Buyer. In any case, the Seller must be given the opportunity to verify the complaint.

8.4. If the notice of defect is timely and the Seller confirms that the Supplies do not comply with the Specifications, the Seller shall, at its sole discretion, either: (i) repair the Supplies; or (ii) replace the Supplies; or (iii) refund the purchase price paid for the Supplies. This Clause 8 constitutes the Buyer’s sole and exclusive remedy (whether express or implied) in respect of any breach of Clause 8.1 and the supply of the Supplies.

8.5. If the Supplies are repaired or replaced due to a justified defect claim, the provisions regarding delivery time shall apply accordingly.

9. General Limitation of Liability

9.1. The limitations and exclusions in this Clause 9 reflect the insurance cover the Seller was able to obtain, and the Buyer is responsible for making its own arrangements to insure against any liability beyond that cover.
9.2. References to liability in this Clause 9 include any type of liability arising under or in connection with the Contract, including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.3. Nothing in the Contract limits any liability that cannot legally be limited, including liability for:
9.3.1. death or personal injury caused by negligence;
9.3.2. fraud or fraudulent misrepresentation;
9.3.3. breach of statutory implied terms relating to title and quiet possession; and
9.3.4. defective products under consumer protection laws.

9.4. Subject to Clause 9.3, the Seller’s total liability to the Buyer shall not exceed 100% of the value of the Order to which the claim relates.

9.5. This Clause 9.5 identifies specific types of excluded damage and loss for the purposes of the Contract. The following types of damage and loss are excluded in full:
9.5.1 loss of profit;
9.5.2 loss of revenue or business;
9.5.3 loss of contracts or orders;
9.5.4 loss of anticipated savings;
9.5.5 loss of use of or damage to software, data or information;
9.5.6 loss of or damage to goodwill; and
9.5.7 indirect or consequential losses.

9.6. The Seller has undertaken to comply with the Specifications for the Supplies. In light of these obligations, any statutory implied conditions are excluded from the Contract to the fullest extent permitted by law.
9.7. The Seller shall not be liable to the Buyer under the Contract for Supplies once a period of 12 months from the delivery date has elapsed.
9.8. This Clause 9 shall continue to apply after termination of the Contract.

10. Compliance

10.1. If the Buyer informs the Seller of a use pursuant to Article 37.2 of Regulation (EC) No. 1907/2006 of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (“REACH Regulation”) which requires an update of the registration or the chemical safety report or any other obligation under the REACH Regulation, the Buyer shall bear all demonstrable costs. The Seller shall not be liable for delivery delays arising from the notification of such use and the fulfilment of the corresponding obligations under the REACH Regulation. If it is not possible, for reasons of health or environmental protection, to include such use as an identified use, and the Buyer intends, contrary to the Seller’s recommendation, to use the Products in a manner against which the Seller advises, the Seller may terminate the Contract and any accepted Orders with immediate effect. The Buyer may not assert any claims for damages against the Seller under the foregoing provisions and the expiry or termination of the Contract in the above circumstances.

10.2 Each Party shall at all times comply with its respective obligations under all applicable Data Protection Laws in connection with the Contract.

10.3 Each Party represents and undertakes that it:
10.3.1 shall not, in connection with this Contract or its business dealings with the other Party, give, promise or offer any bribe and shall not request, agree to receive or accept any bribe (regardless of whether the bribe is provided directly or through another party and whether or not a government official is involved);
10.3.2 is not and does not belong to any government official;
10.3.3 has put in place reasonable processes to prevent persons providing Supplies on its behalf from engaging in bribery; and
10.3.4 keeps accurate and truthful records of all payments relating to this Contract or its business dealings with the other Party.

11. Termination

11.1 The Seller may, without limiting its other rights or remedies, terminate the Contract by giving the Buyer 30 days’ notice for any reason, or with immediate effect by written notice to the Buyer, if:
11.1.1 the Buyer commits a material breach of a contractual provision and (where such breach is remediable) fails to remedy that breach within 14 days of written notice from the Seller requiring it to do so;
11.1.2 the Buyer takes any action or steps in connection with the commencement of insolvency proceedings, provisional liquidation, a composition or arrangement with its creditors (other than in connection with a solvent restructuring), obtaining a moratorium, winding up (whether voluntary or by court order, other than for the purposes of a solvent restructuring), appointment of a receiver over its assets, ceasing to carry on business, or, where the action or step is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
11.1.3 the Buyer ceases, or threatens to cease, to carry on all or a substantial part of its business;
11.1.4 the Buyer’s financial position deteriorates to such an extent that it is reasonably justified to conclude that its ability to fulfil the terms of the Contract is in jeopardy; or further cooperation with the Buyer would damage the Seller’s reputation; or
11.1.5 the Buyer breaches applicable competition laws, anti-corruption laws, or the Seller’s anti-bribery and corruption policy, or causes the Seller to breach such laws or policy.

11.2 Without limiting its other rights or remedies, the Seller may stop any Products in transit and suspend delivery (and any future deliveries) under the Contract or under any other contract between the Buyer and the Seller if:
11.2.1 the Buyer is affected by any of the events listed in Clauses 11.1.1 to 11.1.5;
11.2.2 the Seller has reason to believe that the Buyer will be affected by any of the events listed in Clauses 11.1.1 to 11.1.5; and/or
11.2.3 the Buyer fails to pay any amount due under the Contract on the due date.

11.3 If the Buyer is affected by any of the events listed in Clauses 11.1.1 to 11.1.5, the Seller may:
11.3.1 enter any premises where the Products are stored and take possession of the Products instead of payment; and
11.3.2 claim damages, notwithstanding the fact that the Products may be delivered in instalments.

11.4 Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date.

11.5 Upon termination of the Contract for any reason, the Buyer shall immediately pay the Seller all outstanding unpaid invoices and interest. For Supplies for which no invoice has yet been issued, the Seller shall issue an invoice which shall be payable by the Buyer immediately upon receipt.

11.6 Termination of the Contract for any reason shall not affect the rights and remedies of the parties that have accrued as at the date of termination, including the right to claim damages for breaches of Contract that existed at or before the date of termination.

11.7 All provisions of the Contract which expressly or by implication are intended to come into force or continue in force on or after termination shall remain in full force and effect.

12. Export Control

12.1. Unless otherwise agreed in writing, the Buyer is responsible for compliance with the legal and regulatory requirements for the import, transport, storage, use, distribution and export of the Supplies.

12.2. In particular, but without limitation, the Buyer shall not use, sell or otherwise dispose of the Supplies: (i) for the development or manufacture of biological, chemical or nuclear weapons; (ii) for the illegal manufacture of drugs; (iii) in violation of embargoes or sanctions imposed by Germany, the EU, the United Kingdom, Japan or the USA or any other applicable country or state (including, but not limited to, Supplies falling within the scope of the Russia (Sanctions) (EU Exit) Regulations 2019); (iv) in violation of statutory registration or notification obligations; or (v) without obtaining all permits required under applicable laws and regulations. The Buyer shall indemnify the Seller against all claims, damages, costs, expenses, liabilities, losses, demands or proceedings arising out of or in connection with a breach by the Buyer of the obligations set out in this Clause 12.

12.3. If, at the time of delivery/performance, a statutory or regulatory authorisation requirement applies to the export of the Seller’s Supplies and such export authorisation is not granted upon application, the Seller shall be entitled to terminate the Contract or the accepted Order without any liability to the Seller. Delays in the granting of such authorisations by the competent authorities shall not entitle the Buyer to claim damages.

12.4. The Seller is also entitled to cancel accepted Orders if, at the time of delivery, a trade ban applies or if a product registration obligation exists and the registration has not been applied for or granted at the time of delivery/performance.

12.5. It is a condition of the Contract that the Buyer acts as principal and not as agent of any other person, firm or company, and that the Buyer may not assign its rights or obligations under the Contract in whole or in part without the Seller’s written consent.

12.6. The Buyer warrants and represents that it purchases the Products for use in its own plants (where applicable, in the country stated by the Buyer, including, but not limited to, the country stated in the Order) for the manufacture of one or more items, and to the extent legally permitted for the Seller to impose such restriction, the Buyer may not, without the Seller’s written consent, resell or supply the Products or any part thereof to other persons, firms or companies or transport the Products outside the stated country until the Supplies have been processed into such items.

12.7 The Buyer shall provide all requested documents and give the Seller any reasonable assistance the Seller requires in relation to all matters connected with the legal and regulatory requirements for the import, transport, storage, use, distribution and export of the Supplies.

12.8 In relation to any related third parties in its supply chain for the Supplies, the Buyer shall:
12.8.1 use its best efforts to ensure that the purpose of this Clause 12 is not frustrated;
12.8.2 immediately inform the Seller of any problems in complying with this Clause 12, including any relevant activities of third parties that could frustrate the purpose of this Clause 12; and
12.8.3 establish and maintain an appropriate monitoring mechanism to detect conduct that would frustrate the purpose of this Clause 12.

13. Confidentiality

13.1. Without prejudice to the Buyer’s obligations under confidentiality or non-disclosure agreements entered into by the Buyer, the Buyer shall treat as strictly confidential all information and documents disclosed to it by the Seller relating to the Seller’s specifications or trade secrets (including, but not limited to, the Seller’s proprietary manufacturing processes, know-how or business methods) or otherwise marked by the Seller as confidential, and shall not use, copy or disclose such information and documents to any third party.

14. Severability

14.1. If any provision or term of this Contract is for any reason deemed unlawful, invalid, ineffective, unenforceable or otherwise not enforceable, it shall be severed and deemed deleted from this Contract without affecting or limiting the validity and enforceability of the remaining provisions of this Contract. If any provision or term of this Contract is found to be unlawful, invalid, ineffective, unenforceable or otherwise not enforceable, but would be enforceable if part or parts of it were deleted, that provision or term shall apply with the minimum changes necessary to achieve the original intent of the Buyer and the Seller and to make the provision enforceable.

15. Governing Law and Jurisdiction

15.1 Without prejudice to each Party’s obligations to comply with local laws and all applicable laws, all matters, issues and disputes concerning the validity, interpretation, enforceability, performance and termination in connection with the Contract shall be governed by the laws set out in the Purchase Agreement; or if not set out in the Purchase Agreement: (i) the laws of Germany if the Seller is domiciled in Germany; (ii) the laws of France if the Seller is domiciled in France; (iii) the laws of Italy if the Seller is domiciled in Italy; (iv) the laws of Switzerland if the Seller is domiciled in Switzerland; (v) the laws of the Netherlands if the Seller is domiciled in the Netherlands; or (vi) the laws of England in all other cases. Such law applies to the exclusion of any other choice of law rules or the application of the United Nations Convention on Contracts for the International Sale of Goods, which is expressly excluded.

15.2 If the applicable law is German law, the courts of Frankfurt am Main shall have exclusive jurisdiction. If the applicable law is French law, the courts of La Roche Sur Yon shall have exclusive jurisdiction. If the applicable law is Italian law, the courts of Modena shall have exclusive jurisdiction. If the applicable law is Swiss law, the courts of Zurich shall have exclusive jurisdiction. If the applicable law is Dutch law, the courts of Almelo shall have exclusive jurisdiction. If the applicable law is English law, the courts of England and Wales shall have exclusive jurisdiction.

15.3 The Seller may, at its discretion, decide to bring such dispute before the competent court of the country in which the Buyer has its registered office or place of business, applying the procedural rules applicable in that country. Nothing in this Clause 15 limits the Seller’s right to bring proceedings against the Buyer in any other competent court, nor shall the bringing of proceedings in one or more jurisdictions preclude the bringing of proceedings in other jurisdictions, whether concurrently or not, insofar as permitted by the laws of those other jurisdictions. The Buyer further acknowledges that financial compensation may not be sufficient to protect the Seller’s legitimate interests under this Contract and hereby agrees that, in addition to any other remedies available, the Seller is entitled to seek specific performance or injunctive relief from any court in any jurisdiction.

16. Language

16.1 If this Contract or any part thereof, including, but not limited to, these GTC, is provided in a language other than English, this is for convenience only. In the event of inconsistencies or ambiguities, the English version shall prevail.

Appendix A

If German law is applicable, the provisions contained in this Appendix A shall prevail:

Clause 5 (Delivery and Delivery Times) is replaced by the following:
5.1 Unless otherwise stated in the Purchase Agreement or an Order Confirmation, deliveries shall be made FCA INCOTERMS 2020.
5.2. The delivery time is indicative, not binding and does not constitute a fixed-date transaction.
5.3. The Seller shall not be liable in any way for delivery delays.
5.4. Partial deliveries are permitted.
5.5. The Seller’s delivery obligations are subject to the Buyer’s timely and proper fulfilment of its obligations.
5.6. If the Buyer delays or refuses acceptance of delivery, the Seller shall be entitled to: (i) invoice the costs incurred by the Seller in connection with the delivery and additional expenses and (ii) claim damages.
5.7. A surplus or shortfall of the agreed quantity of Products not exceeding 5% of the agreed quantity shall not entitle the Buyer to reject the Products solely because of such surplus or shortfall. The Buyer shall pay only for the quantity actually delivered.

Clause 7.7 of the GTC (Title and Risk) is replaced by the following:
In the event of resale, the Buyer hereby assigns to the Seller all receivables together with all ancillary rights arising from the resale of the Products to third parties which are the Seller’s property, until all receivables arising from the business relationship with the Seller have been fully settled. In the ordinary course of business, the Buyer is entitled to collect receivables from the further use of these Products. If the Seller becomes aware of facts indicating a material deterioration in the Buyer’s financial circumstances, the Buyer shall, at the Seller’s request, inform its customers of the assignment, refrain from collecting the receivables, provide the Seller with all necessary information regarding the stock of Products subject to retention of title and the receivables assigned to the Seller, and provide the Seller with the documents necessary to enforce the assigned receivables. In the event of attachment or seizure by third parties, the Buyer shall immediately inform the Seller. The Buyer shall bear the costs incurred by the Seller’s intervention. The processing or transformation of the Products subject to retention of title shall be carried out on behalf of the Seller without any obligation for the Seller. The Seller shall be deemed the manufacturer within the meaning of Section 950 of the German Civil Code (BGB) and shall acquire title to the intermediate and final products to the exclusion of the Buyer as owner, in the proportion of the invoice value of the Products of the Seller subject to retention of title to the invoice values of third-party goods. The same applies to the combination or mixing of Products with third-party goods within the meaning of Sections 947 and 948 BGB.

Clause 8 of the GTC (Warranty) shall read as follows:
8.1.
8.1.1. The Seller warrants that: the Products comply with the Specifications at the time of manufacture; and
8.1.2. Services shall be performed with reasonable care and skill, if applicable, in accordance with the Specifications.
8.2. The Seller gives no other express or implied warranty for Supplies, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose and non-infringement of third-party rights. References to standards or similar rules, information in safety data sheets, information on the usability of Supplies and statements in advertisements are neither warranties nor representations. The same applies to declarations of conformity. In particular, identified uses under the REACH Regulation [EC] No. 1907/2006 neither constitute a contract for a corresponding contractual quality nor a contractually agreed use.
8.3. Reference is made to Section 377 of the German Commercial Code (HGB). The Buyer is obliged to inspect the Supplies immediately upon receipt and without undue delay for quality and quantity defects and to notify the Seller in writing no later than five (5) days after receipt, stating the order details, invoice and batch number. Other defects shall be notified to the Seller in writing as soon as they become apparent, but no later than five (5) days after their discovery. If the Seller is not notified of defects in due time, the Supplies shall be deemed approved by the Buyer. In any case, the Seller must be given the opportunity to verify the complaint.
8.4. The Supplies shall not be deemed non-conforming solely due to minor changes or deviations from the Specifications provided by the Buyer.
8.5. Advice on methods of application is not binding on the Seller and does not release the Buyer from its obligation to check whether the Products are suitable for the processes and technologies intended by it or its customers. Apart from the warranty cases described in Clause 8.1, the Seller gives no warranty and all claims for damages against the Seller in connection with advice, proposals, recommendations and/or other communications regarding methods of application are excluded.
8.6. In the case of justified defect claims, the Seller may choose between repair and replacement. The right to refuse the chosen type of subsequent performance in accordance with statutory provisions remains unaffected. Subsequent performance does not include removal of the defective product or reinstallation of the defect-free product or reimbursement of the associated costs if the Seller’s original obligations do not include installation. This does not apply, however, where the Products are supplied to consumers or resellers who sell Products directly or indirectly to consumers. This Clause 8 constitutes the Buyer’s sole and exclusive remedy (whether express or implied) in respect of any breach of Clause 8.1 and the supply of the Supplies.
8.7. All warranty claims of the Buyer under this Clause 8 shall become time-barred twelve (12) months after the transfer of risk of the Supplies. This Clause 8.7 does not apply to claims arising from: (i) injury to life, body or health, (ii) intentional or grossly negligent breach of duty by the Seller or its vicarious agents, or (iii) the German Product Liability Act (ProdHaftG) or other mandatory liability, each of which is subject to the statutory limitation period.

Clause 9 of the GTC (General Limitation of Liability) shall read as follows:
9.1 The Seller’s liability under these GTC, a Purchase Agreement and/or an Order is limited as follows:
9.2 The Seller shall be fully liable for damages based on intent or gross negligence.
9.3 In the case of simple negligence, the Seller shall only be liable for damages to life, body and health resulting from a culpable breach of duty by the Seller, and for damages resulting from a breach of an essential contractual obligation (i.e., an obligation whose fulfilment makes the proper performance of the Contract possible in the first place and on which the other party regularly relies).
9.4 In the event of a breach of an essential contractual obligation, the cumulative liability of the Seller shall be limited to the foreseeable damage typical of the Contract. The parties agree that the amount of foreseeable damage typical of the Contract shall not exceed the amounts paid by the Buyer to the Seller for the relevant accepted Order.
9.5 The liability limitations set out herein also apply to special, incidental, consequential or indirect damages arising out of or in connection with Supplies. The liability limitations set out herein also apply to damages resulting from a breach of duty by the Seller’s vicarious agents or legal representatives.
9.6 Liability under the Product Liability Act, for fraudulently concealed defects and for any guarantee of quality assumed for the Products remains unaffected.

Appendix B

If the applicable law is French law, the provisions contained in this Appendix B shall prevail:

Clause 1.1 of the GTC (Definitions and Interpretation) is supplemented by the following definition:
“In writing” within the meaning of this Clause 1.1 means a contract signed by duly authorised representatives of both parties.

Clause 4.1.1 of the GTC (Prices and Payment Terms) is deleted and replaced as follows:
4.1.1. Prices include applicable taxes and do not include shipping costs at the statutory rate.

Clause 4.2 of the GTC (Prices and Payment Terms) is deleted and replaced as follows:
In accordance with applicable legal and regulatory provisions, in the event of late payment or partial payment, the amounts due shall automatically, and without formal notice, bear interest at a rate equal to three times the statutory interest rate, without affecting the due date of the claim. In addition, a fixed compensation for collection costs in the amount of EUR 40 shall be due for each invoice affected by late or non-payment. The Seller may claim additional compensation from the Buyer if the actual collection costs exceed this amount, provided the Seller submits supporting evidence. These late payment penalties are due by operation of law from the day following the payment date indicated on the invoice issued by the Seller.

Clauses 7.2 (inclusive) to 7.6 (inclusive) of the GTC (Title and Risk) are deleted and replaced as follows:
7.2 As an essential condition for concluding sales under these GTC, it is expressly stipulated that the transfer of title to the delivered Products is suspended until full payment of the price by the Buyer.
7.3 In the event of full or partial non-performance of the payment obligation, the Buyer shall, after formal demand by the Seller, immediately return at its own expense to the Seller the Products received under the performance of the relevant Contract, even if already installed, and/or the price paid by the sub-buyer for the same Products sold subject to retention of title.
7.4 If the Buyer fails to comply with its obligation to return the Products immediately, it may be compelled to do so by summary order, authorising the Seller, by application of this retention of title clause, to repossess the sold Products at any location and entirely at the Buyer’s expense.
7.5 The Seller may also claim from sub-buyers the price or part of the price of Products sold subject to retention of title which has not been paid, settled in value, or offset on a current account between the Buyer and its sub-buyers. To exercise this right, the Buyer undertakes to provide the Seller immediately, upon first request, with all useful information and/or documents relating to its sub-buyers (identity, sale status, payment method and term, etc.). Any part of the price that may already have been paid to the Seller shall be retained by the Seller as consideration for the use of the sold Products.

Clause 9 of the GTC (General Limitation of Liability) is deleted and replaced as follows:
Except in cases of gross negligence by the Seller and compensation for bodily injury, the Seller’s liability for all damages and claims is limited to the amount, excluding taxes, invoiced by the Seller under the relevant Contract. The Seller’s liability may only be asserted for direct property damage and only in the event of fault on the part of the Seller proven by the Buyer. Under no circumstances may the Seller be held liable for indirect and non-material damages, financial losses or damages arising from the action brought (such as loss of earnings, operating or customer losses, damage to image, loss of opportunity, cessation of business, etc.). The Seller shall in no circumstances be liable for damage caused by the fault and/or negligence of the Buyer and/or third parties. In any event, in order to claim damages, the Buyer must, within the limits described, promptly send the Seller a written formal notice, giving the Seller the opportunity to remedy the damage within a reasonable period, and if the Seller has not fulfilled its obligation at the end of that period. The formal notice must describe the alleged fault of the Seller in as much detail as possible so that the Seller can take the necessary measures without acknowledging liability. The Buyer shall indemnify the Seller against all third-party product liability claims if a Product has been supplied by the Buyer to a third party and that Product consisted in part of materials or products supplied by the Seller to the Buyer, unless the Buyer proves by clear and convincing evidence that the alleged damage was caused exclusively by the Seller’s materials or products.

The GTC are supplemented by a new Clause 16

16 Performance of Obligations

By express derogation from Articles 1219 and 1220 of the Civil Code, the parties undertake to perform all their obligations set out in the Contract fully and unconditionally, even if the other party fails to perform its obligations, and regardless of the severity of such non-performance, and the parties expressly and irrevocably waive the right to rely on this provision. Finally, each party expressly and irrevocably waives the right to accept defective performance of the Contract or to demand a proportionate reduction in price, by express derogation from Articles 1222 and 1223 of the Civil Code. The obligations set out in a Contract apply even in the event of non-performance by the other party and regardless of the severity of such non-performance, and the parties expressly and irrevocably waive the right to rely on this provision. The parties waive the right to terminate a Contract pursuant to Article 1226 of the Civil Code, even in the event of a serious breach of the obligations under the relevant Contract by one of the parties, while the non-defaulting party nevertheless retains the right to apply for judicial termination of the relevant Contract if such breach is proven.

The GTC are supplemented by a new Clause 17

Clause 17 Unforeseeable Circumstances

In the event of an unforeseeable occurrence during the Order that affects the balance of the Order to such an extent that performance of the obligations becomes unreasonably expensive for the Seller, the parties agree to negotiate in good faith a modification of the Contract to remedy the situation. This includes in particular the following events: changes relating to standards, laws and/or regulations, changes in raw material prices. Notwithstanding Article 1195 of the French Civil Code, if the parties fail to reach an agreement within 30 calendar days from the request for review, or within any other period agreed in writing between the parties, the Seller may cancel the relevant Order(s) by sending a registered letter with acknowledgement of receipt, subject to a minimum notice period of thirty (30) calendar days, without such cancellation giving either party any right to compensation. If the Buyer has made advance payments, these shall be retained by the Seller.

Appendix C

If the applicable law is Italy, the provisions of this Appendix C shall prevail.

________________, __________ Place Date
__________________________ Signature and stamp of the Buyer

The Buyer expressly accepts the following provisions pursuant to Articles 1341 and 1342 of the Italian Civil Code:
Clause 2 – “General Provisions and Scope”
Clause 4 – “Prices and Payment Terms”
Clause 5 – “Delivery and Delivery Times”
Clause 6 – “Force Majeure”
Clause 7 – “Title and Risk”
Clause 8 – “Warranty”
Clause 9 – “General Limitation of Liability”
Clause 10 – “Compliance”
Clause 11 – “Termination”
Clause 12 – “Export Control”
Clause 15 – “Governing Law and Jurisdiction”

________________, __________ Place Date
__________________________ Signature and stamp of the Buyer

Appendix D

If the applicable law is Swiss law, the provisions of this Appendix D shall prevail:

Clause 7.7 of the GTC (Title and Risk) is supplemented as follows:

7.7 Retention of title is enforceable only if it is registered in the official retention of title register of the Buyer’s canton in accordance with Swiss law. The Buyer shall bear the costs and provide the Seller with evidence of registration.

Clause 9 of the GTC (General Limitation of Liability) is supplemented as follows:
A limitation of liability or exclusion of liability does not apply to damage caused by intentional misconduct or gross negligence, or to mandatory liability under the Swiss Product Liability Act.