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Terms and Conditions

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  1. Scope of Applicability
  2. Terms of Delivery
    1. Contract Conclusion and Content
    2. Prices
    3. Period of Service
    4. Delivery, Consignment, Transfer of Risk, Partial Deliveries
    5. Notice of Defects
  3. Terms of Payment
    1. Due Date and Default
    2. Right to Refusal of Service, Summation
    3. Reporting, Account Reconciliation
  4. Reservation of Title
  5. Protective Rights for Development, Copyright
  6. Test Components Forms, Tools
  7. Breach of Contract
  8. Scope of Liability
  9. Place of Delivery Jurisdiction Applicable Law

  1. Applicability

    1. The General Terms and Conditions (hereinafter referred to as "GTC") on hand apply to all existent and future contractual relationships of CW Bearing GmbH (hereinafter referred to as "CW Bearing").

    2. The General Terms and conditions of CW Bearing apply exclusively. Deviating, contradicting or amending conditions used by other contracting parties will only be deemed part of the contractual agreement if and only insofar as CW Bearing expressly consents to their inclusion in the contract in writing. This consent shall be required in any case, especially so when CW Bearing renders its services without making any reservation. In determining the scope and content of all deviating, contradicting or amending conditions included, the written confirmation of CW Bearing is decisive.

    3. References to the application of statutory regulations are for the purpose of clarification only. Even without such references the statutory regulations shall apply, insofar as they have not been directly amended or expressly excluded.

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  2. Terms of Delivery

    1. Conclusion of contracts, contentt

      1.1     Our offers are subject to confirmation and without any obligations unless they are expressly marked as binding.

      1.2     Legally relevant declarations and notifications of the customer towards CW Bearing which have to be made or are submitted after conclusion of the contract (such as setting of deadlines, notices of defects, withdrawal or reduction declarations) shall only be valid if made in written form.

      1.3     Offer related documents, such as drawings or illustrations, technical specifications, references to standards as well as statements in advertising material shall not be treated as a declaration or warranty towards specifications unless expressly stated as such.

      1.4     Deviations of the goods delivered from the quotes, samples, trial and pre- shipments are allowed and acceptable pursuant to the DIN standards and other technical regulations inforce at the time of delivery and within customary tolerance in the industry.

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    2. Pricing

      2.1     The prices do not include costs and expenses for packaging, freight, loading and unloading, insurance, mounting, assembly and initial operation / commissioning. The related costs and expenses are to be bourne by the customer, unless expressly provided for otherwise in written form in our offer. Pursuant to the statutory regulations in force we accept the return delivery of packaging materials, if returned to us by the customer within a reasonable period of time after delivery and if returned to us free of freight charges.

      2.2     The prices in force on the delivery date apply plus statutory VAT charges in force on such date.

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    3. Delivery times

      3.1     Dates and deadlines for deliveries are always approximate dates or deadlines unless expressly provided for otherwise in writing. Dates and deadlines are deemed as observed if the goods to be delivered have left the business site before such date or within such deadline. Services or deliveries shall not become due until the customer has taken all required cooperation tasks or concessions. In such cases the delivery dates and deadlines shall be postponed until all required cooperation tasks have been taken and / or receipt of concessions.

      3.2     CW Bearing is not liable for an impossibility or a delay in delivery, insofar as such incidents are due to force majeure or other events which have been unpredictable at the time of the contract´s conclusion and which are beyond CW Bearings´responsibility. This also applies to incidents which occur in the sphere of suppliers if CW Bearing is not at fault concerning provisional care. CW Bearing will inform its contractual party about such circumstances after acquiring positive knowledge of the se circumstances and will communicate a new delivery time in due course. Should the performance of the contractual obligations become wholly or partly unreasonable or impossible for either party, the respective party shall be entitled to withdraw from the contract.

      3.3     Any reminders of performance or setting of deadlines by the customer have to be issued in writing.

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    4. Deliveries, shipment passing of risk, partial delivery

      4.1     Upon handing over the goods to the delivery carrier, haulage contractor or other personnel designated to execute the delivery and at the latest at the time of leaving the place of sale, storage or place of delivery in case of drop-ship business, the risk of incidental loss or worsening shall be passed to the customer. In case of delays in delivery or aceptance of the goods for reasons for which we are not responsible the risk shall be passed to the customer at the time of receipt of a ready-to-ship notification or similar. The decision on packaging material and form of packaging shall be in the discretion of CW Bearing. Packaging or delivery regulations of the customer shall not be binding unless expressly agreed on in writing between the parties.

      4.2     Partial deliveries by CW Bearing are acceptable to a reasonable extent. Manufactured or standard package goods can be delivered in over- or under-volumes depending on the customary indutry practice, however at least of up to 10 %.

      4.3     In cases of call-orders, we are entilted to produce the full order amount in one batch. Change requests after conclusion of the contract can not be considered unless expressly provided otherwise in writing. Payments for open quantities of call-orders shall be due for payment upon the specified contractual deadline regardless of the status of the full order. Insofar as a call-order will not be placed within the agreed time period CW Bearing shall be entitled to insist on immdeiate acceptance of the full open amount and to onvoice the full open amount or to withdraw from the contract. The same applies to call-orders if no delivery date or time period has been agreed and 12 months have lapsed without any call from the date of the order confirmation.

      4.4     Goods returns or exchanges on the basis of reasons for which we are not responsible, shall be charged with a proportional handling fee of 10% of the goods value, however a minimum fee of 10.- EURO. Goods or parts thereof which have been manufactured according to customer instructions can not be accepted as returns.

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    5. Notice of defects

      5.1     The delivered items are deemed approved unless CW Bearing has received a written complaint within 5 working days after delivery concerning obvious or other defects that have been identifiable on a diligent examination. With regard to defects that have not been obvious, all items are deemed to be approved unless CW Bearing has received a written complaint within 5 working days upon detection of the defect or earlier, if the defect has been identifiable under normal use of the delivered item.

      5.2     As long as we have not been provided with the opportunity to inspect the resepctive item and assure the defect ourselves and as long as the items have not been provided to us for inspection upon request, defects may not be invoked against us. The costs for the respective handing over of the items shall be bourne by the customer.

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  3. Terms of Payment

    1. Due dates, default of payment

      Our invoices are due for immediate payment, in case of partial deliveries in the proportional amount unless expressly otherwise agreed in writing. Shipment of the goods can only occur after receipt of pre-payments or cash-on-delivery, unless agreed otherwise in writing.

      (a)     Should the customer not fulfill its payment obligations or be in default of payment, we are entitled to claim default interest in the amount of 5 % above the base interest rateset by Deutsche Bundesbank. The right to claim further damages remains unaffected.

      (b)     We are further entitled to declare further claims against the customer due for immediate payment, if facts or incidents arise which indicate a deterioration of the financial situation of the customer.

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    2. Right of refusal, off-set of payments

      Withholding of payments based on potential counter-claims and / or the off-set of payments with potential counter-claims is not permitted, unless the potential counter-claims have been accepted, legally ascertained or due for decision.

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    3. Accounting, reconciliation of accounts

      Objections against our accounting, account excerpts, account reconcilliations or similar have to be filed in wirtten form within an exclusion period of 3 weeks after receipt of the respective document. The timely shipment of the notification is sufficient. In case that no timely objection is filed, it is deemed as approval. Should an obvious error in the document emerge afterwards, especially with regard to calculation errors, both parties are entitled to claim correction of the document based upon statutory regulations.

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  4. Reservation of title

    1. Any and all goods remain property of CW Bearing until a total payment of all current and future debts have been settled and payment documents such as financial promissory notes have been finally accepted.

    2. The customer is entitled to resell and process the items in the ordinary course of business.

    3. In case of reselling and / or processing, blending or combining of the items the rservation of title shall also cover all goods that have been fabricated by the items´processing, blending or combining at their full value, whereas CW Bearing shall be deemed producer of these fabricated goods.If the processing, blending or combining is effected with third party goods and their title remains retained, CW Bearing acquires co-ownership in the ratio of the invoiced value of the processed goods.

    4. The customer hereby assigns any and all claims that may result from the resale, blending or processing of the goods against third parties to us in the amount of the potential co-ownership (cipher 3) as security. The customer remains entitled to collect the debts for our statement as long as the payment obligations towards CW Bearing are fulfilled or until this rights is cancelled. The customer is not entitled to assign those claims against third parties, not even for the purpose of factoring the claims, unless an obligation of the factoring partner is established simultaneously to deliver payment directly to us in the amount equaling the claim against the customer at that time.

    5. Third party accesses or seizures if the items remaining our property have to be communicated to us in writing immediately.

    6. The reservation of title and its exercise does not lead to a withdrawal from the contract.

    7. In case the contracting party´s is in default of payment or its behaviour is contrary to the contractual obligations, we are entitled to reclaim the items which are subject to reservation of title with written notification and are further obliged to resell the items and deduct the sales price from the open claims or set-off the open claims against the market value of the items or acquisition costs, whereas appropriate handling fees can be deducted.

    8. The items and the any substituting claims may not be pledged or assigned as security to third parties before full pyment of our claims occurred.

    9. Should the collateral value exceed our claims by more than 20% a partial release of collateral will be declared in our discretion upon demand of the customer.

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  5. Intellectual property rights, copyright

    1. Insofar as our services include technical advisory, especially preparation technical solutions, patterns and drawings, formulas, development and improvement of products, we hereby reserve all rights to such services and results. This especially applies to intellectual property concerning such products, but also covers the title in physical drawings, models, samples and the like.

    2. Any and all disclosure or passing of, including forwarding for mere display (in whole or in part) is not permitted and entitles us &ndas; while all other claims remain unaffected – to demand surrender of the produced or achieved items. The customer is obliged upon demand to immediately supply all information and documentation required for the due enforcement of our rights. Any patterns, drawings, models, samples or formes produced by us are to be returned to us upon demand, latest and without explicit demand if the order is not awarded to us.

    3. Insofar as we are manufacturing items pursuant to specifications given by the customer, the customer assures that third party rights are no affected and assumes corresponding liability.

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  6. Test models, forms, tools

    1. Should the customer provide parts for the execution of the order, those have to be supplied free-of-charge, free of defects and in sufficient quantity including a reasonable excess quantity in a timely manner at our production site. Our liability for tools, forms, and other production equipment supplied by the customer shall be restricted to the diligence exercised for our own manners. Expenses for repair, maintenance and care as well as potential insurance polica fees are to be bourne by the customer.

    2. The manufacturing of test parts, tools as well as expenses for production or amendment of forms are to be bourne by the customer. In the absence of deviating arrangements, all tools and other parts required for the production process shall be fully owned by us. Unless agreed otherwise, calculated tool costs are proportional expenses.

    3. The customer is boliged to confirm the accuracy of the forms and other technical devices before start of production in writing.
      Models from all calibers will be supplied therefore. The confirmation of accuracy shall be deemed as binding – even if given indirectly through first order calls – without the need of further confirmation from our side.

    4. All storage duties shall lapse, regardless of the legal title in the items, at the latest after 2 years after the last date of production using the respective tool.

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  7. Breach of duties

    1. The statutory rights of the ordering party pursuant to Sec. 437 Nr. 1 German commercial Code shall apply according to the following regulations:

      1.1     If and insofar as delivered items should be not usable in whole or in part as a result of defects, we will at our discretion decide to either remedy the deficiencies or replace the items free-of-charge (hereinafter jointly referred to as "supplementary performance"). We will further bear any direct costs for disassembly and installation. We will not bear any disassembly and installation costs if works are carried out in Foreign countries. We will further not bear any costs for disassembly and installation as the costs are not reasonable in view of the delivery value of the defective items. All other costs have to be bourne by the customer. We will not be responsible for defects which are corresponding to the normal wear and tear of the usage time, faulty installation or improper use.

      1.2     The customer is obliged to grant us adequate time and opportunity to exercise the supplementary performance as it appears necessary to us. Only in cases of urgent threats to operational safety or to prevent disproportionate damages or in cases where we are in default of supplementary performance the customer shall be entitled to perform supplementary performance itself or to claim costs for supplementary performances delivered by third parties. In such case, the customer needs to inform us without delay.

    2. Further statutory rights of the ordering party shall be applicable in accordance with the following provisions:

      We shall only be liable in the following cases:
      (a)     intentionational breach of contract
      (b)     breach of contract in cases of gross negligence of legal representatives and performing agents.
      (c)     culpable injury of life, body or healt
      (d)     fraudulent concealing of defects or breach of guarantees of properties of goods
      (e)     culpable breach of fundamental contractual obligations – restricted to the reasonably foreseeable and predictable damages
      (f)     insofar as there is statutory liability pursuant to the Product Liability Act fpr personal or material damages to privately used goods.

    3. Insofar as not provided otherwise in VII cipher 1 and 2, our liability is excluded

    4. The customer is obliged to prove that the conditions of the claims raised are met and carries the burden of proof with regard to the occurrence of a breach of contract. This also appies to defaults on our side.

    5. Claims for defects shall lapse 12 months after commissioning, at the latest 24 months after the passing of risk to the customer under the condition that the product is used in a single-operational-usage.

    6. Sec. 350 German Commercial Code shall apply accordingly to statutory withdrawal rights.

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  8. Scope of liabilities

    Towards non-consumer customers our liability is restricted to the foreseeable and predictable damage, except for cases of intentional breach or gross negligence. Our liability for failure of achieving warranted specifications is restricted to the extent that we are only liable as the warranted specification was deemed to secure the customer against the damage occurred. There is no additional liability for consequential damages. Our liability further ceases if the customer insofar as the customer is insured, except for intentional breaches. Default penalty payment for delay in performance may only be claimed up to an amount of ½% of the partial net invoiced amount per week of delay, however not more than total 5% of the net invoiced amount of the repective portion of the delivery which mayn not be used in a timely manner or in the contractually agreed manner because of the delay. The same applies to cases of non-performance or inability of performance, provided that the total damages shall be restricted to 15% of the net invoiced amount of the respective ales order or affected part of a contract.

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  9. Place of performance, place of jurisdiction, applicable law

    1. Place of performance for all contractual obligations shall be Hamburg.

    2. The exclusive – also international – place of jurisdiction for any and all disputes arising directly or indirectly under or in connection with this contractual relationship shall be Hamburg, as far as permitted.

    3. The laws of the Federal Republic of Germany shall apply, also in reltion to Foreign contractual partners excluding the international private law. The application of the International Convention on the Sale of Goods (CISG) is expressly excluded.
      Requirements and impacts of the reservation of title pursuant to IV. above are however subject to the law applicable at the location of the item, to the extent that the choice of law in favor of German law is impermissible and invalid.

    4. Should any provision contained in these General Terms and Conditions be or become fully or partly invalid or unenforceable, the validity of all remaining provisions will remain unaffected. The provision that is invalid or unenforceable in full or in part shall be replaced by a provision which leads to an economic effect that comes closest to the economic effect provided for by the invalid or unenforceable provision. If the invalidity or unenforceability is based on a regulation governing performance or timing specifications, the legally admissibls degree which comes as close as possible to that of the invalid or unenforceable provision shall apply.

    5. We hereby point out that personal data is recorded by us in accirdance with the applicable statutory regulations in connection with business transactions.

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Status September 2014
CW Bearing GmbH, Am Neumarkt 36, 22041 Hamburg

In all cases of doubt the text in the original language (german) is binding
In allen Zweifelsfällen ist der Text in der Originalsprache (deutsch) verbindlich.

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