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General Business Terms and Conditions

English version for purpose of convenience only. In case of doubt the German version shall prevail.

I. General observations, scope, contractual conflict rule

1. These General Business Terms and Conditions apply to contracts between Foundry4 Thermdos GmbH (referred to hereinafter as Foundry4) and a natural or legal entity or a partnership acting in its commercial or independent professional capacity at the time of signing the contract (a business owner in the sense of § 14 BGB [Civil Code]) or public legal entities or a public special-purpose fund.

2. These General Business Terms and Conditions apply in addition to any special contractual terms and conditions of Foundry4 and any individual agreements between the Parties. In case of a conflict the individual agreements have priority over the special contractual terms and conditions and the General Business Terms and Conditions, and the special terms and conditions have priority over the General Business Terms and Conditions.

II. Documents associated with the offer

1. Illustrations, designs, calculations, reference lists and other documents - in particular if termed "confidential" - given to the counterparty remain the property of Foundry4 and must be returned upon request. Disclosure to third parties may take place only with the consent of Foundry4.

2. The counterparty has a right of lien to these documents only if its counterclaims are undisputed or confirmed by a court.

3. Foundry4 reserves itself the copyright to the afore-mentioned documents.

III. Prices and terms of payment

1. All prices are quoted net, i.e. without the legal value-added tax; the applicable value-added is shown in the invoice separately.

2. Unless stipulated otherwise by the Parties, prices are understood to be ex work excluding packaging and unloading.

3. A discount is granted only if separately agreed between the Parties.

4. The counterparty has a right of lien only if its counterclaims are undisputed or confirmed by a court. The same applies to the right of the counterparty to offset its own counterclaims.

IV. Delivery time, delayed shipment

1. The delivery time depends on the agreement between the Parties. It can only be observed after all technical questions between the Parties have been clarified.

2. Observance of the delivery time also presupposes that the counterparty has fulfilled in good time all obligations and duties incumbent upon it (e.g. obtaining all necessary official permits or certificates, down payment, duly accepted payment). If the counterparty defaults on these obligations, the delivery time is extended accordingly. The Parties reserve the right to claim further damages and the right to plead non-performance under the contract.

3. Observance of the delivery time is subject to the timeliness of the incoming shipment. Foundry4 will inform the counterparty as quickly as possible in case of a likely delay in shipment. In cases of force majeure - in particular labor disputes, government/official measures which are not attributable to Foundry4, natural catastrophes - which make it temporarily very difficult or impossible for Foundry4 to meet the delivery time, the delivery time is extended automatically accordingly.

4. Delays in the stipulated delivery time in the sense of the above Clauses 3 and 4 of less than three months do not give the counterparty the right to rescind the contract.

5. Foundry4 has the right to rescind the contract if circumstances of the type specified in the above Clauses 3 and 4 render performance very difficult or impossible and if the obstruction is not only of a temporary nature.

6. The counterparty is obligated to take delivery of the delivered merchandise at the stipulated delivery time. If it does not meet this obligation, it is obligated to pay the resulting damages.

V. Transfer of risk, partial shipments

1. Shipment is EXW pursuant to the Incoterms 2010 unless stipulated otherwise.

2. Foundry4 has the right to make partial shipments if such is reasonable for the counterparty.

VI. Guarantee claims

1. The guarantee period is one year from the delivery date or if an acceptance protocol is made from the date of acceptance protocol.

2. The delivered merchandise must be carefully inspected immediately upon delivery to the counterparty or to the third party designated by it. Approval is deemed given if Foundry4 does not receive a written notice of defect with regard to visible defects or other defects detectable during an immediate and careful inspection within seven working days after delivery of the merchandise or otherwise within seven working days after the discovery of the defect or any earlier point in time at which the defect was noticed by the counterparty during normal use of the delivered merchandise without a more in-depth inspection. Upon the request of Foundry4 the defective merchandise must be returned freight prepaid. In case of a justified complaint Foundry4 will reimburse the costs of the most favorable shipping route; this does not apply if costs increase because the merchandise is at a location other than the intended location.

3. In case of redhibitory defects of the supplied merchandise Foundry4 is first obligated and entitled, at its option to be announced within a reasonable period, to cure the defect or replace the merchandise. Foundry4 must be given the necessary time for this purpose in coordination with the counterparty.

4. The counterparty has the right of rescission in the context of the legal regulations if Foundry4 lets a reasonable grace period for curing the defect or replacing the merchandise due a redhibitory defect lapse without action. In case of insignificant defects the counterparty has only the right to a price reduction but not to a rescission. The right of rescission without granting a grace period in the cases provided for by law is not affected.

5. If a defect is attributable to the seller, the principal may under certain conditions outlined in VII. Legal Liability ask for damages.

6. The guarantee is void if the counterparty alters the merchandise or has it altered by a third party without the consent of Foundry4 and if it becomes thereby impossible or if it is made unreasonably difficult to cure the defect. In either case the counterparty is obligated to pay the additional cost of the cure resulting from such alteration.

7. Any shipment of used merchandise agreed upon in individual cases with the counterparty is carried out with the exclusion of any guarantee for redhibitory defects.

VII. Legal Liability

The legal liability of Foundry4 to pay damages, for whatever legal reason, in particular as a result of impossibility, default, defective or wrong shipment, breach of contract, violation of obligations during contract negotiations and illegal actions is limited under this provision to the extent that it is a matter of culpability.

1. Foundry4 is not liable in case of simple negligence by its governing body, legal representatives, employees or other agents in fulfillment unless it is question of a violation of obligations that are essential for the contract. Essential for the contract are all those obligations which make the proper execution of the contract possible in the first place and any violation that seriously jeopardizes the objective of the contract. This includes essentially the defect-free performance of the main obligations (e.g. in case of a sales contract the delivery and if necessary the installation of the object of the sale), as well as the consulting, protection and due care obligations of Foundry4 which are meant to allow the counterparty to use the merchandise as intended or which serve to protect life and limb of the personnel of the counterparty or to protect the property of the latter from material damage.

2. To the extent that Foundry4 is in principle liable pursuant to the above Clause to pay damages, such liability is limited to damages which Foundry4 foresaw as the possible consequence of a breach of contract when signing the contract or which it should have foreseen if it had applied the due care usual in the market. Indirect losses and consequential damages resulting from defects of the delivered merchandise (and/or of the workmanship or other main services) can be indemnified only if such damage can typically be expected during the intended use of the delivered merchandise.

3. In case of a legal liability for simple negligence the obligation of Foundry4 to pay damages for material damage and the resulting further financial losses is limited to an amount of 10.000.000,- € per loss event, even if it concerns a breach of obligations that are essential to the contract.

4. The above liability exclusions and limitations apply in the same extent to the governing body, legal representatives, employees and other agents in fulfillment of Foundry4.

5. To the extent that Foundry4 provides technical information or advice, and if such information or such advice is not part of its contractually stipulated scope of services, such information and such advice is provided free of charge and with the exclusion of any legal liability.

6. The restrictions of the above Clauses do not apply to the liability of Foundry4 due to any deliberate conduct, willful deceit, guaranteed quality characteristics, harm to life, body or health or under the Product Liability Act.

VIII. Retention of title

1. The retention of title agreed upon hereinafter serves to secure all existing present and future claims of Foundry4 against the counterparty under the supply contract entered into by the Parties.

2. The merchandise supplied by Foundry4 to the counterparty remains the property of Foundry4 until the full payment of all secured claims. The merchandise, and the merchandise covered by the retention of lien taking its place under this Clause is hereinafter referred to as merchandise sold subject to retention of title.

3. The counterparty stores the merchandise sold subject to retention of title free of charge on behalf of Foundry4. It has the right to use process and alienate the merchandise sold subject to retention of title during the regular course of business until the occurrence of the disposal event (Clause 8). Such merchandise may not be pledged or assigned as security.

4. If the merchandise sold subject to retention of title is processed by the counterparty, it is agreed that such processing is done on behalf and for the account of Foundry4 as manufacturer and that Foundry4 immediately acquires ownership or - if such processing is based on materials from several owners or if the value of the finished good is higher than the value of the merchandise sold subject to retention of title - co-ownership (community of property by undivided shares) in the newly created good in proportion of the value of the merchandise sold subject to retention of title to the value of the newly created good. In case no such acquisition of title by Foundry4 occurs, the counterparty assigns to Foundry4 already now its future ownership or - in the proportion specified in sentence 1 - co-ownership in the newly created good as collateral. If the merchandise sold subject to retention of title is combined in a uniform good or mixed inseparably, and if one of the other goods can be regarded as the main good, the counterparty, to the extent that the main good belongs to it, assigns to Foundry4 the prorated co-ownership in the uniform good in the proportion specified in sentence 1.

5. In case the merchandise sold subject to retention of title is resold, the counterparty assigns to Foundry4 as collateral already now the resulting claim against the buyer - in case of a co-ownership by the counterparty in the merchandise sold subject to retention of title on a prorated basis according to the co-ownership portion. The same applies to other claims that take the place of the merchandise sold subject to retention of title or otherwise arise with regard to the merchandise sold subject to retention of title, such as insurance claims or claims based on an illegal act in case of loss or destruction. Foundry4 authorizes the counterparty revocably to collect those the claims assigned to Foundry4 on its own behalf. Foundry4 may revoke this collection authorization only in case of disposal.

6. If third parties put hand on the merchandise sold subject to retention of title, in particular by attachment, the counterparty will immediately make such third party aware of the ownership of Foundry4 and inform Foundry4 accordingly to allow it to assert its vested right. If the third party is not able to refund to the seller the judicial or extrajudicial costs incurred in this connection, the counterparty will be liable to Foundry4 for such costs.

7. Foundry4 will upon request release the merchandise sold subject to retention of title as well as the goods or claims at its option if their value exceeds the amount of the secured claims by more than 20%.

8. If Foundry4 rescinds the contract (disposal event) based on a conduct of the counterparty which is improper under the contract - in particular delay of payment -, Foundry4 has the right to demand surrender of the merchandise sold subject to retention of title.

IX. Miscellaneous Provisions

1. The law of the Federal Republic of Germany applies, excluding the U.N. Convention on Contracts for the International Sale of Goods.

2. The legal venue for all disputes arising from the business relationship between Foundry4 and the counterparty is, at the option of Foundry4, Hochheim or the registered office of the counterparty. Hochheim is the exclusive legal venue for any actions against Foundry4. Mandatory legal provisions regarding exclusive legal venues are not affected by this provision.

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