Applicability of the General Terms and Conditions

Samsung’s offers, deliveries and services are made or rendered exclusively on the basis of these Terms and Conditions. They also apply to any future business relations in current business dealings, even if not explicitly referred to, and are deemed to be accepted at the latest upon acceptance of the goods or services. Samsung expressly objects to any counter-confirmation by the Buyer invoking either its own general terms and conditions or its purchase conditions.

Any deviation from these Terms and Conditions shall be valid only upon our written confirmation. These Terms and Conditions shall only be applicable vis-à-vis enterprises within the meaning of § 14 para. 1 German Civil Code (BGB), public entities and public special funds within the meaning of § 310 para. 1 BGB.

Conclusion of the Contract

Any statements contained in brochures, advertisements, price lists, etc. – in particular statements relating to any price quotations – are subject to confirmation and made without obligation. Declarations of acceptance and all orders require our written confirmation to be legally valid. The same applies to any supplements, alterations or side agreements.

Any documentation, such as catalogues, price lists, specifications, illustrations,drawings and measurements, shall be considered as approximations only unlessthey are expressly declared to be binding.

Samsung’s offers are subject to change without notice.

Prices

Unless provided otherwise, Samsung is not bound by the prices quoted in its general offers. The prices quoted in its order confirmation shall prevail, plus statutory value-added tax as applicable from time to time.

Unless otherwise agreed, prices are ex warehouse (“ex works” Incoterms 2000) including normal packaging.

Time of Delivery, Performance, Force Majeure

Commencement of the time of delivery presupposes that all questions have been clarified and that Buyer has performed his obligations. Unless otherwise agreed or provided for in the contract, the time of delivery stated by Samsung is not binding.

Samsung shall not be liable for delays in delivery owing to force majeure or to unforeseeable circumstances beyond its control such as plant interruptions,strikes, lock-outs, lack of means of transportation, difficulties in procuring raw materials, orders imposed by the authorities, supplies not delivered to it on time by its suppliers particularly for these reasons. Any agreed term for delivery shall be extended by the period of obstruction plus a start-up period of reasonable length. If the obstruction lasts longer than one month, Samsung and Buyer shall be entitled at the end of an additional period of time of reasonable length to be set to rescind the contract with regard to the part not yet performed.

If, after Samsung’s default, the Buyer grants it an additional period of time of reasonable length, he shall be entitled to rescind the contract after this additional period of time has expired without results; the Buyer shall be entitled to claim damages instead of performance only if the default was caused intentionally or by gross negligence, or through breach of material duties. In case of Samsung’s slight negligence, its liability shall be limited to an amount of max. 5% of the net invoice value of the goods delayed. At any rate, its iability for negligent delay shall be limited to the foreseeable damage in each individual case.

The limitations on liability pursuant to subsection (3) shall not apply insofar as a transaction for delivery by a fixed date where the date is of essence was agreed or the Buyer is no longer interested in performing the contract because of Samsung’s default. In such cases, Samsung’s liability shall be limited to the damage which is typical of the contract and foreseeable.

If the Buyer defaults in taking delivery or infringes other duties to cooperate,Samsung shall be entitled to claim compensation for the damage suffered by it,including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the object of purchase will pass to the customer at the time when he defaults in taking delivery.

Samsung shall be entitled to effect part deliveries if these are not opposed to any noticeable interests of the Buyer.

Samsung is allowed to refuse delivery if the Buyer is in default of payment for reasons Buyer is responsible for. This shall also apply in case any credit insurance rejects coverage of Buyer’s financial risk.

Dispatch and Passing of Risk

Samsung dispatches from stock at the expense of the Buyer. In the absence of written instructions, dispatch will be made at Samsung’s reasonable discretion, without assumption of liability for the choice of the means of dispatch.

The risk passes on to the Buyer as soon as the consignment has been handed over to the person responsible for transportation or if it has left Samsung’s warehouse for dispatch. If the dispatch is impossible without any fault on our part,the risk passes to the Buyer upon notification of the dispatch date.

Samsung shall not be responsible for insuring shipments unless otherwise agreed upon in writing.

Warranty and Liability

The warranty rights (warranty claims) of Buyer presuppose that he inspects the delivered Products immediately upon receipt and gives written notice of any visible defects without undue delay after carrying out the inspection, or of hidden defects without undue delay after their discovery, specifying the defect at the same time (§§ 377 et. seq. German Commercial Code – HGB –).

All of Samsung’s specifications, including those contained in brochures,manuals and other documentation, are only descriptions and are not express warranties or guarantees unless otherwise expressly agreed.

If Samsung is responsible for a defect of a Product, Buyer may assert further claims or rights (rescission of contract, reduction of the purchase price, damages or reimbursement of expenses) only if Samsung was first given the opportunity to effect subsequent performance (repair or replacement of the defect Product) within a reasonable period of time, unless Samsung has given any guarantee to the contrary. Samsung may choose, at its option, repair or replacement of the defect Product.

In case Buyer wrongfully notifies to Samsung defects for reasons it is not responsible for, it shall be entitled to charge to Buyer’s account reasonable expenses incurred by it for determining and/or remedying the defects.

Samsung may charge to Buyer’s account additional costs necessarily incurred for the purpose of subsequent performance (repair or replacement), particularly transport costs, travelling expenses, costs of labour and of materials insofar as the costs are incurred as a result of Buyer taking the delivered Products to a location other than the delivery address.

The warranty period shall terminate 12 (twelve) months after receipt of the Products by Buyer, unless Samsung caused the defect intentionally or by gross negligence, or concealed the defect with intent to deceive. The same shall apply to any guarantees which are binding on Samsung, unless these guarantees provide anything to the contrary. However, in case of statutory warranty periods exceeding two years by virtue of law, the statutory warranty periods shall be applicable. Likewise, the statutory warranty periods shall apply to claims under a right of recourse according to § 478 German Civil Code – BGB. These warranty periods shall also apply to consequential and indirect damages caused by a defect.

Should subsequent performance fail despite at least two attempts, should it be impossible or unacceptable for Buyer, or should Samsung refuse subsequent performance, Buyer may rescind the contract or reduce payment. Clause 7 shall apply to damage claims and claims for reimbursement of expenses.

Damages

Claims of damage and claims for reimbursement of expenses because of defects to the Products shall be excluded insofar as Samsung cannot effect subsequent performance for reasons it is not responsible for. Damage claims for defects or indirect or consequential damage shall be excluded, unless the defect was grossly negligently or intentionally caused by Samsung.

Claims of damage for violation of a durability guarantee given by Samsung or third parties (§ 443 section 2 German Civil Code – BGB – ) for which Samsung is liable shall be excluded unless the violation was caused by Samsung’s own fault.

In all other respects, damage claims and claims for reimbursement of expenses by Buyer – irrespective of the legal grounds -, particularly for violation of duties under and in connection with an obligation, from breach of obligations upon or prior to the conclusion of a contract, or tort, shall be excluded. For all such claims, the limitation period of 12 months pursuant to Clause 6 (6) shall apply.

The above limitations of liability shall not apply in the event of Samsung’s negligent breach of a material contractual obligation. However, should it be liable for any negligently caused damage to Buyer, liability of Samsung shall be limited to the typical, foreseeable damage.

The statutory provisions shall apply to claims according to §§ 1, 4 Product Liability Act – Produkthaftungsgesetz –, with regard to any violation of life or in the event of personal injury to health and in case of a quality guarantee.

Retention of Title

Samsung shall retain title to the delivered Products until receipt of all payments owed by Buyer. In the event that Buyer is in breach of contract, in particular defaults in payment despite a reasonable extension of the original payment term, Samsung shall be entitled to take back the delivered Products.
This shall not apply if the Buyer has already filed a petition for insolvency proceedings or insolvency proceedings have been instituted. After taking back the delivered goods, Samsung shall be entitled to realize the same; the realization proceeds shall be set off against the Buyer’s liabilities, less reasonable costs of realization. The provisions relating to the German Insolvency Code (Insolvenzordnung), if applicable, shall not thereby be affected.

The Buyer is obliged to handle the delivered Products carefully. In particular, he is obliged to insure the same sufficiently at the reinstatement value at his expense against damage caused by fire, water and theft. If maintenance and inspection work is necessary, the Buyer shall carry out such work at his expense in due time.

The Buyer shall inform Samsung in writing without undue delay of attachments and any other interference by third parties. The Buyer shall be liable to Samsung for any court and out of court costs of any action which may be necessary pursuant to § 771 German Code of Civil Procedure (ZPO) (action in opposition to execution of a judgment, brought by a third party who claims title to the attached property).

The Buyer shall be entitled to resell the delivered Products in the ordinary course of business; however, he herewith already assigns to Samsung all claims to the amount of the invoice sum total (including value-added tax) accruing to him from the resale against his customers or third parties, irrespective of whether the delivered Products have been resold or have been processed.
The Buyer shall be authorized to collect his payment claims against his customers even after assignment. However, Samsung shall be authorized to collect the claim itself if the Buyer does not perform his obligations to pay from the collected proceeds, defaults in payment or has filed a petition for insolvency proceedings or such a petition has been filed or payments have ceased. In such cases, Samsung may demand that the Buyer states which claims have been assigned and their debtors, furnishes all the information necessary for the collection, hands over the appurtenant documents and notifies the debtors (third parties) of the assignment. However, it will not be possible for Samsung to collect the claim if this is precluded according to the Insolvency Code.

Any processing or transformation of the delivered Products by the Buyer shall always be carried out on Samsung’s behalf. If the delivered Product is processed with other items not belonging to Samsung, Samsung shall acquire joint title to the new thing proportionally to the value of the delivered Product to the other processed items at the time of the processing. In all other respects, the provisions applicable to the Product delivered with a title reservation shall also apply to the item resulting from the processing

Samsung undertakes to release the securities to which Samsung is entitled at the Buyer’s request also to the extent that the value of its securities exceeds the claims to be secured by more than 20 %. Selection of the securities to be released shall be incumbent on Samsung.

In case of frontier-crossing shipments, the following shall apply in derogation of clauses (1) – (6):
If the delivered Product was delivered prior to payment of all amounts owed by the Buyer under the contract, Samsung shall retain title to the Product until payment in full insofar as this is admissible under the law in the area of application of which the object of purchase is located. If this law does not permit the reservation of title, but allows Samsung to reserve other rights to the delivered Product, it may exercise all rights of this kind. The Buyer is obliged to assist Samsung in any action taken to protect its title or the right to the Product which replaces such title.

Payment

Samsung’s invoices are immediately due without discount unless otherwise agreed. Default occurs at the latest thirty days after receipt of invoice, without reminder being required. In addition, default occurs by reminder.

The payment date is the day on which Samsung has the money at its disposal. Discount, if any has been agreed upon, may not be deducted as long as earlier invoices are still open. Despite any Buyer provisions to the contrary Samsung is entitled to decide against which claims payment is set off. For lack of other provisions, incoming payments are first set off against costs incurred, then against interest and finally against the principal claim.

Samsung reserves the right to refuse acceptance of cheques or bills of exchange. Such cheques or bills of exchange are accepted for payment purposes only. The Buyer shall bear and immediately pay any discount and bill charges.

If the Buyer is in default, it shall in addition to the principal claim pay interest in the amount of 8% p.a. above the base rate (LRG rate) of the European Central Bank, unless Samsung can prove a higher interest damage.

If the Buyer does not comply with its payment obligations, in particular if a cheque or bill is not cashed or payment is stopped, if Samsung has to take default action or if Samsung learns of facts excluding any granting of credit customary in the trade, it shall be entitled to accelerate payment against the Buyer, even if Samsung has accepted cheques or bills of exchange. In such case Samsung is furthermore entitled to demand advance payment or securities and, after fruitless expiry of a reasonable period, to withdraw from the contract and claim damages.

Even in the case of notice of defects or counterclaims, the Buyer is entitled to setoff, withholding or reduction, only if Samsung has consented thereto or if the counterclaims are undisputed or have been established by final court decision.

Place of Jurisdiction, Partial Invalidity, Applicable Law

For merchants, the exclusive place of jurisdiction for all disputes directly or indirectly resulting from the contractual relationship shall be the court competent for Samsung’s company’s registered office (the Local Court (Amtsgericht) of Königstein or the District Court (Landgericht) of Frankfurt am Main.

The laws of the Federal Republic of Germany shall exclusively apply, under exclusion of the UN Convention on the International Sale of Goods of 11 April 1980.

If any provision of these Terms and Conditions or any provision within the scope of the agreement is or becomes invalid, this shall not affect the validity of all other provisions or agreements. Rather, the Buyer and Samsung are obliged to agree on a replacement of the invalid provision by a valid provision being closest to the economic purpose intended by the invalid provision to the extent permitted by law. If this cannot be achieved, the invalid provision shall be replaced by statutory regulations.

Samsung Chemical Europe GmbH