GTC

General Business Terms & Conditions of Projekt Kochstrasse Marketing GmbH

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Plaza de Rosalia in 30449 Hannover, Germany
Acting here at the same time for all companies with registered seat in the Federal Republic of Germany, Hong Kong and Singapore, and in which it has interests, in the following referred to as PK In the following the contractual party is referred to as Customer PK shall not recognize the validity of the Customer's divergent terms and conditions, unless PK has explicitly agreed to their validity in writing. Any counterconfirmations made by the Customer with reference to its business terms and/or terms of delivery are hereby expressly opposed.

§ 1 Delivery dates
(1) The parties hereto agree the following fixed points for delivery of the items in the Customer's respective order. The respective dates shall be shown separately in PK's order confirmation using the following terminology:
– PONR (point of no return) last possible date for
with drawing from the order
– WD (warehouse deadline)
last possible date for delivering the items to a central warehouse
(2) After expiry of the WD, PK shall have the possibility of delivering the items within a reasonable grace period to a destination to be designated by the Customer. In respect of timely receipt the local time/date at the Customer's destination shall be authoritative. Individual grace period(s) and destination(s) must appear separately in PK's order confirmations.
(3) If individual grace period(s) and destination(s) are not shown in PK's order confirmation, Hong Kong shall be deemed the destination and the grace period a period of 60 days as from the WD.
(4) With regard to the agreed fixed dates, the Customer's duties to cooperate and the respective dates are to be established at the time the order is placed. Should the Customer fail to perform its duties to cooperate or to observe the agreed dates, then PK shall not be liable for meeting the delivery dates. This shall also apply in the event that the Customer subsequently changes the order. Over and above this, PK shall be entitled to damages in respect of the costs that it has thus incurred.

§ 2 Delay in delivery
(1) All agreements concerning possible terms and conditions relating to a delay or delays in delivery must be recorded in writing in PK's respective order confirmation.
(2) Excluded from any ruling on a delay or delays in delivery to be agreed separately are any kind of operational interruptions at PK's or its suppliers, natural disasters, strikes, lockouts, lack of means of transportation, interventions by authorities, difficulties with the energy supply etc. as well as any other circumstances that PK could not foresee or be held responsible for, that entitle PK to suspend or partially suspend or extend its supply obligation, without the Customer being entitled to claim damages as a result thereof. PK is entitled to carry out partial deliveries which shall be treated as separate
deliveries.

§ 3 Execution
(1) All PK's quotations shall be non-binding. In order to become legally valid, declarations of acceptance and orders, shall require PK's written confirmation. The details in the order confirmations in terms of the scope of supply, appearance, performance, dimensions and weights shall be regarded as approximate values only and do not constitute any guaranteed features or properties.
(2) PK or its upstream suppliers shall retain ownership rights and copyright to illustrations, drawings, calculations, tools, printed documents, patterns, samples and other documentation, even if the costs for producing these documents and tools are invoiced to the Customer. This shall also apply to such written documents marked as "confidential". These may not be passed on to third parties, unless PK' has given its express written approval beforehand.
(3) The Customer shall bear sole responsibility for any photomasters, printer's copies, films, printing blocks and other documentation it has provided. A production release declared by the Customer is binding. If the Customer does not oppose a sent galley proof within 3 days, this shall become binding.
(4) The Customer is liable for ensuring that the documentation it has provided is non-encumbered with
third-party rights. It is not the duty of PK to check this. With order placement, the Customer exempts PK from all claims brought against PK as a result of any infringement of the law. PK is not under any obligation to accept orders or may withdraw from any orders that could entail an infringement of third-party rights or in themselves pose a risk of causing infringements of that kind.
(5) PK is entitled to under or overdeliver up to 10 % of the goods ordered. In the event that the Customer makes subsequent changes to the ordered quantity, PK is entitled to levy a separate processing charge or a mark-up for small-volume purchases.
(6) In the event that the self-supply of PK is delayed or fails to take place and in the case of force majeure, PK shall be entitled to withdraw from the contract. In such cases the Customer is not entitled to claims for damages.
(7) It shall be left to PK to decide whether it wishes to have specific subcontractors, selected by itself, render the performance in whole or in part.
(8) Minor deviations in colour, size and material compared with the samples or specifications submitted
by the Customer or PK shall be authorized from the outset. PK shall make every effort to supply the colour, size or material that comes closest to the Customer's wishes. It is hereby expressly pointed out that the final product may show deviations in colour and size attributable among other things to the different production processes.
(9) An approval reservation on the part of the Customer based on a sample to first be made is only
possible by special agreement and subject to an extra charge.

§ 4 Shipment and the passing of risk
(1) If the goods are shipped to the Customer at its request, the risk of accidental loss or destruction or
accidental deterioration of the goods passes to the Customer when the goods are dispatched, at the latest, however, when these leave the factory/warehouse. This applies irrespective of whether shipment of the goods is carried out from the place of performance or whoever bears the freight costs. When in doubt, deliveries shall be deemed to have been handed over undamaged. The transport risk in respect of damage and delays is borne by the Customer. At the Customer's written request, transport insurance cover based on the usual terms and conditions and at its expense is possible.
(2) Even if PK assumes payment of the freight costs in whole or in part, the risk shall still reside with the
Customer.
(3) Unless anything else to the contrary is agreed, the packaging, the route and the shipping mode shall be determined by PK.
(4) In the event that the goods are returned unjustifiably, PK's supply obligation converts to an obligation to be performed at the place of business and for storage at PK's warehouse (this takes place at the Customer's risk) and PK is entitled to invoice 10 % of the total invoice amount for each month commenced. Re-delivery (ex warehouse) of the unjustifiably returned goods to the Customer shall only be carried out concurrently - against payment of the new shipping charges and the aforementioned storage surcharge as well as any due and otherwise outstanding claims for capital, interest and expenses.
(5) In the event that goods are returned without justification, PK is entitled at any time (even if PK had
initially put the returned goods into storage) to refuse to re-deliver the goods in whole or in part, with there being no need to state the reasons for doing so. In such a case the Customer shall receive a credit note for a maximum of 25 % of the respective purchase price, depending on whether and to what extent the goods still have a concrete utilization value, if any. PK's remaining claims shall continue to remain in force.
(6) The Customer is under an obligation to accept without delay the goods sent or made available for
collection in accordance with the contract. If the Customer fails to meet this obligation, then the delivery
shall be deemed carried out on the day on which it should have been accepted in accordance with the terms of the contract. The risk of accidental loss or destruction passes to the Customer accordingly.
(7) If there is a delay in accepting the delivery or due to force majeure it becomes impossible to carry it out, PK is entitled to store the goods itself at the Customer's expense and risk or have these stored at a
haulage contractor's. If PK stores the goods itself at its own warehouse, PK shall be entitled to invoice these costs as well (see paragraph 4).

§ 5 Reservation of title
(1) The goods shall remain the property of PK until all PK's outstanding claims against the Customer have
been paid in full or until such time as any commitments resulting from cheques and/or bills of exchange have expired. The Customer is under an obligation to protect any goods subject to reservation of title against loss of value and to take out adequate insurance cover at its own expense to protect them against fire and theft. The Customer may only dispose of the goods within the framework of its ordinary business and may neither pledge the goods nor transfer them by way of security. In the event that the goods are seized or confiscated, PK must be notified of this immediately in writing by means of a registered letter with advice of delivery. The enforcement officer and the creditor with right of lien, having actioned the seizure or confiscation, must be immediately informed about PK's extended reservation of title.
(2) In the event that the goods, for which PK has not received payment in full, are resold, the Customer
assigns to PK the claim it holds against its own customer resulting from the resale. Until retracted, the Customer is authorized to collect in PK's name the claim thus accrued to PK Parallel to this, PK is entitled, if it so elects, to directly collect the claim itself. The Customer is therefore under an obligation to name its customer to PK as well as to specify to PK the amount and the due date of the resale price.
(3) The expenses incurred as a result of asserting the rights from the reservation of title shall be borne by the Customer.

§ 6 Terms of payment
(1) All payments shall be made directly to PK, free of charge for the recipient, and be deemed made with the working day following the value date of the credit note on PK's account.
(2) In as far as nothing to the contrary is agreed, the following terms of payment shall be deemed agreed:
– on order placement, 25% of the total invoice amount
– 3 working days after the PONR a further 25% of the total invoice amount
– 3 working days after the WD(s) or subsequent delivery dates remaining payment
of the total invoice amount. PK reserves the right on principle, without stating any reasons, to deliver only against advance payment or cash on delivery.
(3) Payments received shall be booked in the following order: extra-judicial collecting charges, judicial collecting charges, interest, capital, whereby PK expressly reserves the right to other marking. Should several invoices be outstanding, then the respectively oldest invoice shall be paid first. If other terms of payment are agreed, then in each instance the V.A.T. contained in the invoice shall become due within 30 days of the invoice date. In the event that this obligation is not met, the payment agreement becomes void and the entire amount becomes immediately due for payment without any reduction or deduction.
(4) If adequate proof of financial soundness cannot be furnished or objective circumstances indicate there is a risk of the payment obligation not being met or a significant deterioration of the Customer's financial circumstances becomes known, then contrary to the existing agreements on payment, PK shall be entitled to deliver against advance payment, cash payment or cash on delivery only, and to make the already existing claims immediately due for payment as well as to refuse to take in bills of exchange and, despite any bills of exchange possibly becoming due at a later date, to insist on the immediate payment of all invoices. Over and above this, PK has the right to make the further work on current orders dependent on proportionate payments. Moreover, PK is entitled to retain non-delivered goods as well as in the case of non-payment of the proportionate claims to suspend further work on current orders. PK shall be due these rights even in those cases where the Customer does not make any payment despite having received a reminder on grounds of default.
(5) Cheques and bills of exchange shall not constitute payment until they have been redeemed and shall be credited subject to this proviso only.
(6) If the credit period is exceeded, the Customer undertakes to pay interest at the rate of at least 2 % above the interest rate that PK has to pay to the PK house banks as the maximum rate, however, at least 12 % p. a. The asserting of further damages due to default shall not be excluded hereby.
(7) Default in payment by the Customer invalidates its right to demand fulfilment of current delivery contracts.
(8) In the case of default in payment, all the legal and extra-judicial costs of collection as well as collecting expenses shall be paid by the Customer. The same applies to costs of recruitments on account of third-party ownership, registration of claims and other expenses not determined by a court of law. The amount of the dunning costs is defined as follows: € 38.-- plus V.A.T per reminder.
(9) Moreover, where there is default in payment the Customer must pay compensation for any further damage, in particular also the damage incurred due to the fact that as a result of non-payment correspondingly higher interest charges have accrued on PK's credit accounts, irrespective of the party responsible for the payment default.
(10) In the case of default in payment as well as instigation of settlement or bankruptcy proceedings, all invoices shall become due, irrespective of the credit period granted, and the discounts and reductions shown and/or deducted in the invoices shall become invalid. In such cases the gross recommended prices shall be charged.
(11) The Customer shall not be entitled to retain or offset payments on the basis of warranty claims or other counterclaims. The Customer may only offset against an uncontested claim or one that has been recognized by declaratory judgement.
(12) In as far as no fixed price agreement has been entered into, deliveries made later than 2 months after conclusion of the contract shall be subject to reasonable changes in price on account of changed labour, material and distribution costs.

§ 7 Complaints/warranty
(1) In every case the Customer must inspect the supplied goods to verify conformity with the contract.
(2) Complaints pertaining to the quantity and quality of the goods and those involving goods supplied other than those ordered, must be made in writing (by means of registered letter with advice of delivery) and are only admissible within 3 working days of the goods having arrived/been handed over at the destination in accordance with the delivery note. After lapse of this period, the goods shall be deemed accepted without any objections.
(3) In the case of a timely and justified complaint, PK shall be entitled by way of remedy and at its option, to either repair or replace the faulty goods or issue a credit note and set aside a corresponding reserve. Under no circumstances shall other claims or consequences resulting from defects be admissible, in particular liability for consequential damages, unless intent or gross negligence on the part of PK or its vicarious agents can be proven.
(4) Defects of a part of the supplied goods do not justify a complaint that finds fault with the delivery as a whole.
(5) PK assumes no liability for damage that has occurred as a result of the Customer's defective storage of the goods.
(6) A presumption ruling shall be excluded. It is the duty of the Customer to prove that a defect was present at the time of hand-over.

§ 8 Limitation of liability
(1) Unless the damage has been caused through acts of intent or gross negligence, damage claims shall be excluded. Liability for minor negligence, compensation for consequential damages and pecuniary loss, lost profits and damage from third-party claims shall be expressly excluded.
(2) In as far as the damage has not been caused through acts of intent and gross negligence, damage claims shall be limited to the amount of the order value only.
(3) In the case of other forfeiture, claims for damages must be asserted through judicial channels within 6 months of the damage having become known or within one year of the delivery having been made or the service rendered. As from a year following delivery or service rendered, the onus of proof lies with the Customer.
(4) Should liability on the part of PK come into question, PK shall be exempt from liability to the extent
that PK assigns its existing and assertable claims against supplying or further processing companies to the Customer.
(5) The liability for damages in respect of material damage pursuant to the Product Liability Act as well as
any product liability claims that can be derived from other provisions, shall be excluded. The restrictions on liability are to be imposed fully on all further customers and they too shall be under the obligation to further impose. The object of supply offers only such safety as can be expected taking the properties specific to the material into account.

§ 9 Imprint of corporate name or brand
(1) PK is entitled, even without any specific consent on the Customer's part, to attach PK's corporate name or other company-owned brand labels to the products to be carried out/delivered.

§ 10 Confidentiality and advertising
(1) The Customer is under an obligation to treat quotations, order confirmations, invoices as well as
other documents from PK in connection with the placed orders and all related commercial and technical
details as trade secrets and in particular to instruct its staff accordingly. The confidentiality obligation arising as a result shall remain in force even after this contract has been wound up.
(2) The Customer shall only be permitted to refer to a business relationship with PK in its advertising,
provided PK has given its express written consent beforehand.

§ 11 Other provisions
(1) This skeleton agreement and the entire legal relations of the parties are goverend by the law of the
Federal Republic of Germany. Application of the UN Sales Convention (CISG) is expressly excluded.
(2) Place of performance and exclusive jurisdiction for all disputes arising out of this contract shall be PK's
registered business seat.
(3) Amendments and additions to this contract must be made in writing. This shall also apply to changes to this written form requirement itself. Oral collateral agreements have not been entered into.
(4) Escape clause: If one of the provisions or a part of one of the provisions in this contract is declared void or non applicable, or contains loopholes, all the other provisions shall remain unaffected. The contractual parties undertake to replace the ineffective provision with a legally admissible regulation that would accomplish, to a large extent, the purpose and objectives sought in the ineffective or null and void provision.

Updated 2008