GENERAL TERMS AND CONDITIONS

General Terms and Conditions of Sale FETTE Pharma AG

For use by FETTE Pharma AG (hereinafter: “FETTE“) in dealings with commercial buyers

1. Scope

1.1 Supplies and services provided by FETTE shall be executed exclusively on the basis of these General Conditions of Sale, which form an integral part of all contracts and which shall also apply to all future business transactions, even where they are not explicitly reiterated.

1.2 Any commercial agents appointed by FETTE may initiate and prepare contracts but are not authorised to conclude contracts on behalf of FETTE.

1.3 Unless stated otherwise, these General Terms and Conditions of Sale shall apply only to FETTE’s dealings with commercial buyers within the meaning of sec. 14 German Civil Code (BGB), with legal entities under public law, and with special assets under public law according to sec. 310 German Civil Code (BGB). Any general conditions of purchase or terms of business on the part of Buyer are disallowed and herewith expressly rejected. The acceptance of an order or silence on the part of FETTE cannot be taken to imply FETTE’s consent to any deviating conditions of purchase or terms of business.

2. Offer and Conclusion of the Contract, Description of the Goods, Changes to the Goods

2.1 Statements regarding the goods shall not be qualified as offers of FETTE unless expressly stated otherwise.

2.2 Conclusion of the contract is subject to the correct and timely supply to FETTE by its own suppliers, except in cases of only minor interruptions to supply, and except where FETTE is responsible for it not being supplied. The Buyer shall be informed of non-availability, and payments made shall be refunded without delay.

2.3 Samples provided to the Buyer prior to, or at the occasion of, conclusion of the contract are intended to be for illustrational purposes only. The properties displayed by any samples shall not be construed as warranted properties.

2.4 FETTE reserves the right to make changes in the specification of the goods where such changes are due to the nature of the goods or where they do not exceed an extent that is customary in trade, provided that such changes do not materially affect the goods’ fitness for purpose under the contract.

3. Prices

Unless agreed otherwise, FETTE’s prices are ex works, exclusive of packaging, transport and insurance costs and exclusive of statutory value-added tax, which shall be shown on the invoice at the rate applicable at the time of invoicing. Prices shall be those stated in FETTE’s price list at the date of the Buyer’s order. All prices are in Euros.

4. Payment Conditions, Default of Payment

4.1 Payment is due immediately upon receipt of FETTE’s invoice. Discounts require agreement in writing. Cheques and other non-cash payments shall only be accepted on account of performance. Drafts shall only be accepted after previous written agreement and only on account of performance.

4.2 Any payments received by FETTE will be credited against the oldest invoice due, including default interest and costs due in respect of such invoice, in the following order: costs, interest, invoice amount.

4.3 The Buyer is deemed to be in default of payment to the extent that payment has not been received by FETTE after 14 days from delivery.

4.4 If the Buyer defaults on payment, any other outstanding payment obligations shall become due immediately. In addition, where the Buyer fails to make payment when due, FETTE may require that adequate collateral be provided or that payments may be made in advance. From the due date, interest in the amount of 8% p.a. above the respective base interest rate shall accrue. FETTE reserves all rights to claim further damages for delay of payment.

4.5 In the event of goods being defective, the Buyer shall not be entitled to exercise a retention right in respect of the purchase price to the extent that retention of the purchase price would be out of reasonable proportion to the probable costs of remedying the defect or replacing the goods.

4.6 The Buyer may only set off claims which are either uncontested by FETTE or which have been adjudicated and are final and non-appealable. The Buyer may only assert its right of retention if the Buyer is entitled to uncontested and adjudicated counterclaims arising out of the same contractual relationship.

5. Delivery of the Goods

5.1 Delivery dates must be agreed in writing. Delivery is deemed to have been made when the goods are despatched or, in cases where they are to be collected by Buyer, when the goods are placed in readiness for collection and the Buyer has been notified.

5.2 Goods shall be at the Buyer’s risk as soon as they are handed over to a carrier or freight-forwarder, but in no event later than the time that they leave the premises of FETTE or, as the case may be, the premises of the company instructed with delivery of the goods. This shall apply irrespective of whether delivery may have been agreed to be free Buyer’s address or carriage paid. The Buyer shall be responsible for, and bear the cost of, unloading the goods.

5.3 In cases where the goods are to be collected by Buyer, the risk shall pass to Buyer at the time that Buyer has been notified that the goods have been placed in readiness for collection.

5.4 FETTE shall not be obliged to obtain insurance cover unless at the express instruction (received in good time) and the expense of Buyer.

5.5 Should Buyer fail to accept the goods within 14 days after notice has been given of their readiness for hand-over or, as the case may be, their readiness for collection, FETTE may withdraw from the contract and claim damages in lieu of performance. If FETTE claims damages in lieu of performance, such damages shall amount to 20% of the purchase price, unless FETTE can prove higher actual losses or unless Buyer can prove that FETTE’s actual loss is less than 20%. Buyer’s obligation to accept the goods shall be deemed a material obligation under the contract.

5.6 FETTE may effect partial deliveries unless partial delivery is not reasonably acceptable to Buyer.

5.7 To the extent required to do so by law, FETTE will accept any packaging returned by Buyer, carriage prepaid, within a reasonable period of time following delivery.

6. Retention of Title

6.1 FETTE retains title to the goods delivered for so long as all outstanding debts in connection with the business relationship with Buyer have been completely paid.

6.2 In the event Buyer processes the goods delivered by FETTE, FETTE shall be considered manufacturer and shall directly acquire sole title to the newly produced goods.

6.3 If the processing involves other materials, FETTE shall directly acquire joint title to the newly produced goods in the proportion of the invoice value of the goods delivered by FETTE to the invoice value of the other materials.

6.4 If the goods delivered by FETTE are combined or blended with material owned by Buyer, which has to be considered the main material, it is deemed to be agreed that Buyer transfers to FETTE the joint title to such main material in the proportion of the invoice value of the goods delivered by FETTE to the invoice value (or, if the invoice value can not be determined to the market value) of the main material. Buyer holds in custody for FETTE any sole or joint ownership originating therefrom at no expense for FETTE.

6.5 Buyer shall have in the ordinary course of business free disposal of the goods owned by FETTE, provided that Buyer meets its obligations under the business relationship with FETTE in due time. Buyer already assigns to FETTE all claims in connection with the sale of goods to which FETTE reserves the right of retention of title when concluding the sales agreement with FETTE; should FETTE have acquired joint title in case of processing, combination or blending such assignment to FETTE takes place in the proportion of the value of the goods delivered by FETTE with retention of title to the value of the goods of third parties with retention of title. Buyer already assigns to FETTE any future confirmed balance claims under current account agreements in the amount of the outstanding claims of FETTE when concluding the sales agreement with FETTE.

7. Default of Delivery

7.1 If FETTE is unable to comply with the terms of delivery for reasons of force majeure (including but not limited to industrial disputes, disruption of operations due to fire, water or weather, war or warlike acts, directions by a government or other authority) or due to other unforeseeable events beyond FETTE’s control, the terms of delivery shall be extended by the duration of the hindrance.

7.2 If delayed delivery is due to wilful conduct or gross negligence on FETTE’s part, or on the part of its legal representative or vicarious agent, FETTE will be liable according to the statutory provisions. FETTE will also be liable according to the statutory provisions for simply negligent injuries of life, body or health.

7.3 In other cases where FETTE is responsible for a delay in delivery, liability for damages in addition to performance shall be limited to 5% of the value of the delivery affected, and liability for damages in lieu of performance (including for frustrated expenses) shall be limited to 20% of the value of the delivery affected. Further claims against FETTE shall be excluded, irrespective of whether Buyer may have set a deadline for performance.

7.4 The above limitations to FETTE’s liability shall not apply where FETTE is responsible for failing to fulfil a material obligation under the contract, in which case clause 11 shall apply in respect of any claim for damages by Buyer.
7.5 Buyer’s right to withdraw from the contract under clause 10 of these General Terms and Conditions of Sale shall remain unaffected.

8. Liability for Defects

Unless otherwise agreed in the contract with Buyer, FETTE’s liability for defects shall be as follows:

8.1 Buyer shall not be entitled to any remedies in case of only insignificant deviations from the agreed qualities of the goods, or where their fitness for purpose is impaired only insignificantly.

8.2 Subject to clause 8.3 below, Buyer’s sole remedy shall be re-performance (Nacherfüllung). Re-performance must be requested by Buyer in writing, notwithstanding the statutory provisions under which Buyer may be entitled to certain remedies without having set an additional deadline. FETTE shall be free to decide whether re-performance will be through remedy of the defect or through replacement of the goods. In each instance, FETTE shall have not less than four weeks to complete re-performance. Any remedy of defects other than replacement shall not be deemed to have failed until two attempts have been unsuccessful. Buyer shall be responsible for any additional expenses incurred for re-performance as a result of the goods having been moved by Buyer to a place other than Buyer’s place of business.

8.3 If re-performance fails, Buyer may at its option demand a reduction of the purchase price or withdraw from the contract, notwithstanding the statutory provisions under which Buyer may be entitled to those remedies without having set an additional deadline.

8.4 Unless otherwise agreed, nothing herein shall limit the application of secs. 478, 479 German Civil Code (BGB), provided, however, that Buyer shall be entitled to a right of recourse against FETTE only to the extent that Buyer has not entered into any agreement with its customer granting the customer rights over and above the claims for defects provided for by statute.

8.5 Unless explicitly stated and agreed, statements made in respect of the quality or useful life or other properties of the goods shall not be considered independent warranties. If such statements have been agreed, but not explicitly as independent warranties, they shall be considered agreed specifications pursuant to sec. 434 German Civil Code (BGB) only.

8.6 Buyer’s claims for damages for defects shall be as set out in clause 11 of these General Terms and Conditions of Sale.

9. Notification of Defects

9.1 Buyer shall not have any remedies for defects under clause 8 of these General Terms and Conditions of Sale unless Buyer has inspected the goods without undue delay after having received them. Any defects discoverable upon inspection must be notified to FETTE without undue delay and in no event later than 5 days after receipt of the goods. Failure to notify a defect will result in the goods being deemed defect free, except where the defect was not discoverable upon inspection. Any defects not discoverable upon inspection must be notified without undue delay and in no event later than 5 days after their actual discovery; failure to do so will result in the goods being deemed defect free. Any notification of defects by Buyer must be made in writing and must specify the goods that are defective, the date and number of the invoice as well as the precise nature of the defect. The notification must be accompanied by such documentation and evidence as may be appropriate, including samples and packing slips. A notification of defects is made in good time only if it has been received in good time by FETTE. The provisions of this clause 9.1 shall apply accordingly where Buyer becomes aware of defects through a consumer claim.

9.2 If the Buyer notifies a defect and this notification turns out to be unwarranted, the Buyer shall, without prejudice to any other rights that FETTE may have, indemnify FETTE from any expenses incurred in reviewing and – to the extent demanded by Buyer – remedying the defect.

10. Withdrawal from the Contract

The Buyer may withdraw from the contract as provided for by statute, but only if FETTE is responsible for its breach of duty. In case of any breach of duty, the Buyer must indicate upon FETTE’s request, within a reasonable period of time after having received the request, whether the Buyer withdraws from the contract or insists on delivery being made. In case of defects of the goods, however, solely the statutory provisions shall apply in respect of withdrawal from the contract.

11. Claims for Damages; Limitations and Exclusions of Liability

11.1 FETTE shall be liable without limitation where FETTE acts with intent, gross negligence, or fraudulently. In cases of simple negligence, FETTE shall be liable only if FETTE breaches a duty that is material to the Buyer’s ability to receive the benefit of the contract; in such cases, FETTE shall be liable for such loss as is foreseeable and typical for the contract. Over and above the foregoing, FETTE shall not be liable for whatever reason, unless otherwise agreed between the parties.

11.2 The above limitations and exclusions of liability shall not apply to claims for death, personal injury or impairment of health, or for claims based on the German Act on Product Liability (Produkthaftungsgesetz). To the extent that FETTE’s liability is limited or excluded, the same limitations and exclusions shall apply to the liability of FETTE’s vicarious agents (Erfüllungsgehilfen) and performing agents (Verrichtungsgehilfen).

11.3 The provisions of clauses 11.1 and 11.2 above shall apply in respect of any and all claims for damages (in particular damages in lieu of performance and damages in addition to performance), irrespective of their basis in law, including without limitation damages for defects of the goods, breaches of other duties under the contract, or tortuous acts. The above provisions shall also apply to claims in respect of frustrated expenses. They shall further apply to FETTE’s liability for default in delivery, in cases where such default constitutes breach of a material obligation under the contract; in other cases of default in delivery, solely clause 7.2 of these General Terms and Conditions of Sale shall apply.

12. Limitation Periods

Buyer's claims against FETTE, whether for defective goods of otherwise, are subject to a period of limitation of one year. In the case of defective goods, that period begins with Buyer’s receipt of the goods. In the following cases the statutory periods of limitation apply instead of the one-year period:

a) Liability for wilful misconduct,

b) Fraudulent concealment of a defect,

c) Claims against FETTE relating to the defectiveness of goods that when applied to a building in the ordinary manner caused it to be defective,
d) Claims for damage to life, body and health caused by FETTE’s negligent breach of duty, or by wilful or negligent breach of duty on the part of FETTE’s legal representative or vicarious agent,

e) Claims for other damage caused by FETTE’s grossly negligent breach of duty, or by wilful or grossly negligent breach of duty on the part of FETTE’s legal representative or vicarious agent,

f) In the event of a Buyer's recourse claim based on consumer goods purchasing regulations.

13. Intellectual Property Rights

13.1 Recipes, manufacturing or processing methods or techniques, texts, blueprints, sketches or drawings or other documents supplied by FETTE to the Buyer, and all copyright, design rights or any other forms of intellectual property rights therein, shall at all times be and remain the exclusive property of FETTE. Such recipes etc. may not be made available to third parties without FETTE’s prior agreement, and they shall be returned at FETTE’s request.

13.2 The same shall apply to any recipes, designs, registered designs, trade marks, or other intellectual property rights associated with the goods.

13.3 The Buyer shall not have any rights of usage or commercialisation except to the extent required for the distribution of the goods.

13.4 Buyer warrants that goods supplied by FETTE on the basis of any drawings, models, samples or other documents provided by Buyer do not infringe upon third party rights. Should any third party allege such rights and demand that FETTE cease the production or delivery of any such goods, FETTE shall be entitled, without having to verify the basis of such claims, to immediately cease production and delivery. The Buyer shall indemnify FETTE from any losses incurred, provided that Buyer is responsible. The Buyer shall also, without undue delay, hold FETTE harmless from any claims brought against FETTE by third parties.

14. Changed circumstances of Buyer

14.1 If Buyer’s financial circumstances deteriorate materially, or if Buyer, outside of the normal course of business, disposes of goods delivered by FETTE under retention of title, or if Buyer dissolves its business, FETTE is entitled to demand immediate payment of all receivables from Buyer, to repurchase any bills of exchange, or to refuse further deliveries unless against advance payment or adequate security.

14.2 If Buyer ceases to make payments or is overindebted, or if insolvency or reorganisation proceedings are filed for, FETTE may, at its option, either exercise the aforementioned rights or withdraw from the contract as provided for by statutory provisions.

15. Data Protection

FETTE shall be entitled to store and process electronically, for the purpose of implementing the contract, any data on the Buyer that is connected to the business relationship with Buyer, strictly in accordance f with the provisions of the German Data Protection Act.

16. Final Provisions

16.1 Nothing contained in the aforesaid provisions shall effect any change in the burden of proof to the Buyer’s disadvantage.

16.2 The contract and these General Terms and Conditions of Sale shall be governed by German law, excluding its conflict of law rules and excluding the provisions of the CISG.

16.3 Unless otherwise agreed, place of performance for all deliveries is FETTE’s place of business.

16.4 Exclusive venue for any disputes relating to the contractual relationship, irrespective of their nature or basis, shall be FETTE’s registered place of business. Nothing in this clause, however, limits the right of FETTE to take proceedings against the Buyer in any other court of competent jurisdiction.

16.5 If any provision of these General Terms and Conditions of Sale (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions shall not be affected. If any invalid, unenforceable or illegal provision would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

Last updated February 2010

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	GENERAL TERMS AND CONDITIONS General Terms and Conditions of Sale FETTE Pharma AG For use by FETTE Pharma AG (hereinafter: “FETTE“) in dealings with commercial buyers 1. Scope 1.1 Supplies and services provided by FETTE shall be executed exclusively on the basis of these General Conditions of Sale, which form an integral part of all contracts and which shall also apply to all future business transactions, even where they are not explicitly reiterated. 1.2 Any commercial agents appointed by FETTE may initiate and prepare contracts but are not authorised to conclude contracts on behalf of FETTE. 1.3 Unless stated otherwise, these General Terms and Conditions of Sale shall apply only to FETTE’s dealings with commercial buyers within the meaning of sec. 14 German Civil Code (BGB), with legal entities under public law, and with special assets under public law according to sec. 310 German Civil Code (BGB). Any general conditions of purchase or terms of business on the part of Buyer are disallowed and herewith expressly rejected. The acceptance of an order or silence on the part of FETTE cannot be taken to imply FETTE’s consent to any deviating conditions of purchase or terms of business. 2. Offer and Conclusion of the Contract, Description of the Goods, Changes to the Goods 2.1 Statements regarding the goods shall not be qualified as offers of FETTE unless expressly stated otherwise. 2.2 Conclusion of the contract is subject to the correct and timely supply to FETTE by its own suppliers, except in cases of only minor interruptions to supply, and except where FETTE is responsible for it not being supplied. The Buyer shall be informed of non-availability, and payments made shall be refunded without delay. 2.3 Samples provided to the Buyer prior to, or at the occasion of, conclusion of the contract are intended to be for illustrational purposes only. The properties displayed by any samples shall not be construed as warranted properties. 2.4 FETTE reserves the right to make changes in the specification of the goods where such changes are due to the nature of the goods or where they do not exceed an extent that is customary in trade, provided that such changes do not materially affect the goods’ fitness for purpose under the contract. 3. Prices Unless agreed otherwise, FETTE’s prices are ex works, exclusive of packaging, transport and insurance costs and exclusive of statutory value-added tax, which shall be shown on the invoice at the rate applicable at the time of invoicing. Prices shall be those stated in FETTE’s price list at the date of the Buyer’s order. All prices are in Euros. 4. Payment Conditions, Default of Payment 4.1 Payment is due immediately upon receipt of FETTE’s invoice. Discounts require agreement in writing. Cheques and other non-cash payments shall only be accepted on account of performance. Drafts shall only be accepted after previous written agreement and only on account of performance. 4.2 Any payments received by FETTE will be credited against the oldest invoice due, including default interest and costs due in respect of such invoice, in the following order: costs, interest, invoice amount. 4.3 The Buyer is deemed to be in default of payment to the extent that payment has not been received by FETTE after 14 days from delivery. 4.4 If the Buyer defaults on payment, any other outstanding payment obligations shall become due immediately. In addition, where the Buyer fails to make payment when due, FETTE may require that adequate collateral be provided or that payments may be made in advance. From the due date, interest in the amount of 8% p.a. above the respective base interest rate shall accrue. FETTE reserves all rights to claim further damages for delay of payment. 4.5 In the event of goods being defective, the Buyer shall not be entitled to exercise a retention right in respect of the purchase price to the extent that retention of the purchase price would be out of reasonable proportion to the probable costs of remedying the defect or replacing the goods. 4.6 The Buyer may only set off claims which are either uncontested by FETTE or which have been adjudicated and are final and non-appealable. The Buyer may only assert its right of retention if the Buyer is entitled to uncontested and adjudicated counterclaims arising out of the same contractual relationship. 5. Delivery of the Goods 5.1 Delivery dates must be agreed in writing. Delivery is deemed to have been made when the goods are despatched or, in cases where they are to be collected by Buyer, when the goods are placed in readiness for collection and the Buyer has been notified. 5.2 Goods shall be at the Buyer’s risk as soon as they are handed over to a carrier or freight-forwarder, but in no event later than the time that they leave the premises of FETTE or, as the case may be, the premises of the company instructed with delivery of the goods. This shall apply irrespective of whether delivery may have been agreed to be free Buyer’s address or carriage paid. The Buyer shall be responsible for, and bear the cost of, unloading the goods. 5.3 In cases where the goods are to be collected by Buyer, the risk shall pass to Buyer at the time that Buyer has been notified that the goods have been placed in readiness for collection. 5.4 FETTE shall not be obliged to obtain insurance cover unless at the express instruction (received in good time) and the expense of Buyer. 5.5 Should Buyer fail to accept the goods within 14 days after notice has been given of their readiness for hand-over or, as the case may be, their readiness for collection, FETTE may withdraw from the contract and claim damages in lieu of performance. If FETTE claims damages in lieu of performance, such damages shall amount to 20% of the purchase price, unless FETTE can prove higher actual losses or unless Buyer can prove that FETTE’s actual loss is less than 20%. Buyer’s obligation to accept the goods shall be deemed a material obligation under the contract. 5.6 FETTE may effect partial deliveries unless partial delivery is not reasonably acceptable to Buyer. 5.7 To the extent required to do so by law, FETTE will accept any packaging returned by Buyer, carriage prepaid, within a reasonable period of time following delivery. 6. Retention of Title 6.1 FETTE retains title to the goods delivered for so long as all outstanding debts in connection with the business relationship with Buyer have been completely paid. 6.2 In the event Buyer processes the goods delivered by FETTE, FETTE shall be considered manufacturer and shall directly acquire sole title to the newly produced goods. 6.3 If the processing involves other materials, FETTE shall directly acquire joint title to the newly produced goods in the proportion of the invoice value of the goods delivered by FETTE to the invoice value of the other materials. 6.4 If the goods delivered by FETTE are combined or blended with material owned by Buyer, which has to be considered the main material, it is deemed to be agreed that Buyer transfers to FETTE the joint title to such main material in the proportion of the invoice value of the goods delivered by FETTE to the invoice value (or, if the invoice value can not be determined to the market value) of the main material. Buyer holds in custody for FETTE any sole or joint ownership originating therefrom at no expense for FETTE. 6.5 Buyer shall have in the ordinary course of business free disposal of the goods owned by FETTE, provided that Buyer meets its obligations under the business relationship with FETTE in due time. Buyer already assigns to FETTE all claims in connection with the sale of goods to which FETTE reserves the right of retention of title when concluding the sales agreement with FETTE; should FETTE have acquired joint title in case of processing, combination or blending such assignment to FETTE takes place in the proportion of the value of the goods delivered by FETTE with retention of title to the value of the goods of third parties with retention of title. Buyer already assigns to FETTE any future confirmed balance claims under current account agreements in the amount of the outstanding claims of FETTE when concluding the sales agreement with FETTE. 7. Default of Delivery 7.1 If FETTE is unable to comply with the terms of delivery for reasons of force majeure (including but not limited to industrial disputes, disruption of operations due to fire, water or weather, war or warlike acts, directions by a government or other authority) or due to other unforeseeable events beyond FETTE’s control, the terms of delivery shall be extended by the duration of the hindrance. 7.2 If delayed delivery is due to wilful conduct or gross negligence on FETTE’s part, or on the part of its legal representative or vicarious agent, FETTE will be liable according to the statutory provisions. FETTE will also be liable according to the statutory provisions for simply negligent injuries of life, body or health. 7.3 In other cases where FETTE is responsible for a delay in delivery, liability for damages in addition to performance shall be limited to 5% of the value of the delivery affected, and liability for damages in lieu of performance (including for frustrated expenses) shall be limited to 20% of the value of the delivery affected. Further claims against FETTE shall be excluded, irrespective of whether Buyer may have set a deadline for performance. 7.4 The above limitations to FETTE’s liability shall not apply where FETTE is responsible for failing to fulfil a material obligation under the contract, in which case clause 11 shall apply in respect of any claim for damages by Buyer. 7.5 Buyer’s right to withdraw from the contract under clause 10 of these General Terms and Conditions of Sale shall remain unaffected. 8. Liability for Defects Unless otherwise agreed in the contract with Buyer, FETTE’s liability for defects shall be as follows: 8.1 Buyer shall not be entitled to any remedies in case of only insignificant deviations from the agreed qualities of the goods, or where their fitness for purpose is impaired only insignificantly. 8.2 Subject to clause 8.3 below, Buyer’s sole remedy shall be re-performance (Nacherfüllung). Re-performance must be requested by Buyer in writing, notwithstanding the statutory provisions under which Buyer may be entitled to certain remedies without having set an additional deadline. FETTE shall be free to decide whether re-performance will be through remedy of the defect or through replacement of the goods. In each instance, FETTE shall have not less than four weeks to complete re-performance. Any remedy of defects other than replacement shall not be deemed to have failed until two attempts have been unsuccessful. Buyer shall be responsible for any additional expenses incurred for re-performance as a result of the goods having been moved by Buyer to a place other than Buyer’s place of business. 8.3 If re-performance fails, Buyer may at its option demand a reduction of the purchase price or withdraw from the contract, notwithstanding the statutory provisions under which Buyer may be entitled to those remedies without having set an additional deadline. 8.4 Unless otherwise agreed, nothing herein shall limit the application of secs. 478, 479 German Civil Code (BGB), provided, however, that Buyer shall be entitled to a right of recourse against FETTE only to the extent that Buyer has not entered into any agreement with its customer granting the customer rights over and above the claims for defects provided for by statute. 8.5 Unless explicitly stated and agreed, statements made in respect of the quality or useful life or other properties of the goods shall not be considered independent warranties. If such statements have been agreed, but not explicitly as independent warranties, they shall be considered agreed specifications pursuant to sec. 434 German Civil Code (BGB) only. 8.6 Buyer’s claims for damages for defects shall be as set out in clause 11 of these General Terms and Conditions of Sale. 9. Notification of Defects 9.1 Buyer shall not have any remedies for defects under clause 8 of these General Terms and Conditions of Sale unless Buyer has inspected the goods without undue delay after having received them. Any defects discoverable upon inspection must be notified to FETTE without undue delay and in no event later than 5 days after receipt of the goods. Failure to notify a defect will result in the goods being deemed defect free, except where the defect was not discoverable upon inspection. Any defects not discoverable upon inspection must be notified without undue delay and in no event later than 5 days after their actual discovery; failure to do so will result in the goods being deemed defect free. Any notification of defects by Buyer must be made in writing and must specify the goods that are defective, the date and number of the invoice as well as the precise nature of the defect. The notification must be accompanied by such documentation and evidence as may be appropriate, including samples and packing slips. A notification of defects is made in good time only if it has been received in good time by FETTE. The provisions of this clause 9.1 shall apply accordingly where Buyer becomes aware of defects through a consumer claim. 9.2 If the Buyer notifies a defect and this notification turns out to be unwarranted, the Buyer shall, without prejudice to any other rights that FETTE may have, indemnify FETTE from any expenses incurred in reviewing and – to the extent demanded by Buyer – remedying the defect. 10. Withdrawal from the Contract The Buyer may withdraw from the contract as provided for by statute, but only if FETTE is responsible for its breach of duty. In case of any breach of duty, the Buyer must indicate upon FETTE’s request, within a reasonable period of time after having received the request, whether the Buyer withdraws from the contract or insists on delivery being made. In case of defects of the goods, however, solely the statutory provisions shall apply in respect of withdrawal from the contract. 11. Claims for Damages; Limitations and Exclusions of Liability 11.1 FETTE shall be liable without limitation where FETTE acts with intent, gross negligence, or fraudulently. In cases of simple negligence, FETTE shall be liable only if FETTE breaches a duty that is material to the Buyer’s ability to receive the benefit of the contract; in such cases, FETTE shall be liable for such loss as is foreseeable and typical for the contract. Over and above the foregoing, FETTE shall not be liable for whatever reason, unless otherwise agreed between the parties. 11.2 The above limitations and exclusions of liability shall not apply to claims for death, personal injury or impairment of health, or for claims based on the German Act on Product Liability (Produkthaftungsgesetz). To the extent that FETTE’s liability is limited or excluded, the same limitations and exclusions shall apply to the liability of FETTE’s vicarious agents (Erfüllungsgehilfen) and performing agents (Verrichtungsgehilfen). 11.3 The provisions of clauses 11.1 and 11.2 above shall apply in respect of any and all claims for damages (in particular damages in lieu of performance and damages in addition to performance), irrespective of their basis in law, including without limitation damages for defects of the goods, breaches of other duties under the contract, or tortuous acts. The above provisions shall also apply to claims in respect of frustrated expenses. They shall further apply to FETTE’s liability for default in delivery, in cases where such default constitutes breach of a material obligation under the contract; in other cases of default in delivery, solely clause 7.2 of these General Terms and Conditions of Sale shall apply. 12. Limitation Periods Buyer's claims against FETTE, whether for defective goods of otherwise, are subject to a period of limitation of one year. In the case of defective goods, that period begins with Buyer’s receipt of the goods. In the following cases the statutory periods of limitation apply instead of the one-year period: a) Liability for wilful misconduct, b) Fraudulent concealment of a defect, c) Claims against FETTE relating to the defectiveness of goods that when applied to a building in the ordinary manner caused it to be defective, d) Claims for damage to life, body and health caused by FETTE’s negligent breach of duty, or by wilful or negligent breach of duty on the part of FETTE’s legal representative or vicarious agent, e) Claims for other damage caused by FETTE’s grossly negligent breach of duty, or by wilful or grossly negligent breach of duty on the part of FETTE’s legal representative or vicarious agent, f) In the event of a Buyer's recourse claim based on consumer goods purchasing regulations. 13. Intellectual Property Rights 13.1 Recipes, manufacturing or processing methods or techniques, texts, blueprints, sketches or drawings or other documents supplied by FETTE to the Buyer, and all copyright, design rights or any other forms of intellectual property rights therein, shall at all times be and remain the exclusive property of FETTE. Such recipes etc. may not be made available to third parties without FETTE’s prior agreement, and they shall be returned at FETTE’s request. 13.2 The same shall apply to any recipes, designs, registered designs, trade marks, or other intellectual property rights associated with the goods. 13.3 The Buyer shall not have any rights of usage or commercialisation except to the extent required for the distribution of the goods. 13.4 Buyer warrants that goods supplied by FETTE on the basis of any drawings, models, samples or other documents provided by Buyer do not infringe upon third party rights. Should any third party allege such rights and demand that FETTE cease the production or delivery of any such goods, FETTE shall be entitled, without having to verify the basis of such claims, to immediately cease production and delivery. The Buyer shall indemnify FETTE from any losses incurred, provided that Buyer is responsible. The Buyer shall also, without undue delay, hold FETTE harmless from any claims brought against FETTE by third parties. 14. Changed circumstances of Buyer 14.1 If Buyer’s financial circumstances deteriorate materially, or if Buyer, outside of the normal course of business, disposes of goods delivered by FETTE under retention of title, or if Buyer dissolves its business, FETTE is entitled to demand immediate payment of all receivables from Buyer, to repurchase any bills of exchange, or to refuse further deliveries unless against advance payment or adequate security. 14.2 If Buyer ceases to make payments or is overindebted, or if insolvency or reorganisation proceedings are filed for, FETTE may, at its option, either exercise the aforementioned rights or withdraw from the contract as provided for by statutory provisions. 15. Data Protection FETTE shall be entitled to store and process electronically, for the purpose of implementing the contract, any data on the Buyer that is connected to the business relationship with Buyer, strictly in accordance f with the provisions of the German Data Protection Act. 16. Final Provisions 16.1 Nothing contained in the aforesaid provisions shall effect any change in the burden of proof to the Buyer’s disadvantage. 16.2 The contract and these General Terms and Conditions of Sale shall be governed by German law, excluding its conflict of law rules and excluding the provisions of the CISG. 16.3 Unless otherwise agreed, place of performance for all deliveries is FETTE’s place of business. 16.4 Exclusive venue for any disputes relating to the contractual relationship, irrespective of their nature or basis, shall be FETTE’s registered place of business. Nothing in this clause, however, limits the right of FETTE to take proceedings against the Buyer in any other court of competent jurisdiction. 16.5 If any provision of these General Terms and Conditions of Sale (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions shall not be affected. If any invalid, unenforceable or illegal provision would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable. Last updated February 2010
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