I. General

1. The following terms and conditions shall apply to all contracts for the supply of goods and services by APA Promotion GmbH and APA Brands Events Solutions GmbH & Co. KG (hereinafter referred to as APA) to third parties who are not consumers within the meaning of the German Civil Code (hereinafter referred to as clients).

2. They apply exclusively. APA shall not accept any terms and conditions of the customer conflicting with or deviating from our terms and conditions of sale, unless APA has expressly agreed to their validity in writing The Terms and Conditions of Sale shall also apply if APA carries out the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from APA’s General Terms and Conditions.

II. Offer and conclusion of contract

1. The client is committed to an order for three weeks. A contract shall be concluded when APA has confirmed acceptance of the order in writing.

2. All agreements shall be recorded in writing. This also applies to ancillary agreements and assurances as well as to subsequent amendments to the contract.

3. When placing an order, the exact invoice recipient or invoice payer must be specified. If this only becomes known at a later date and a new invoice has to be issued as a result, APA charges a fee of 6 euros.

4. Cancellations of orders are only permissible with the consent of APA in individual cases. In this case APA may claim either liquidated damages of 15% of the order value or damages in the proven amount, the customer remaining free to prove that no damage occurred at all or that the damage was less than the liquidated damages.

5. For all individual, customised or special productions, the construction and design drawings prepared by APA are mandatory for dimensioning and printing. APA is entitled to make adjustments in production for technical reasons without the consent of the customer, provided that obtaining consent to the change could affect promised deadlines and the services ordered by the customer are not relevantly changed as a result. In this case, an implementation will be made that is closest to the one originally chosen.

6. Measurement tolerances of +/- 5% for all materials are permissible, unless these have been expressly excluded in writing in the order confirmation.

III. Prices

1. Unless otherwise agreed in writing, our prices are valid ex works/warehouse/shipping station. The statutory value added tax applicable at the time must be added to all price quotations.

2. The client/recipient shall bear all shipping costs. APA is entitled either to deliver “freight collect” or to charge a flat freight rate.

3. Sketches, drafts, templates, printing plates or other – including electronic – print templates or preparatory work as well as data transfers initiated by the client shall be charged separately. The client has no claim to the return of the produced materials. These remain the property of APA.

IV. Payment conditions

1. Unless otherwise agreed, all payments shall be made within 8 days of invoicing. The discount may only be deducted by special written agreement.

2. Payment orders, cheques and bills of exchange shall only be accepted by special agreement and only on account of payment, with all collection and discount charges being calculated.

3. The client shall only have the right to offset if his counterclaims have been legally established or are undisputed.

V. Delivery and delay in deliver

1.Delivery dates must be stated in writing. The start of the delivery time requires not only the specification but also the clarification of all technical questions. If subsequent amendments to the contract are agreed, a new delivery date shall be agreed at the same time if necessary. The compliance with the delivery obligation further presupposes the timely and proper fulfilment of the client’s obligations.

2. After a delivery date has been exceeded, the customer may request APA in writing to deliver within a reasonable period of time, which must be at least 14 days, stating that it refuses to accept the subject matter of the contract after expiry of the deadline. APA shall only be in default upon expiry of this period.

If a delivery date has not been agreed, APA will only be in default upon expiry of the reasonable grace period set in a reminder, which must be at least 14 days.

In addition to delivery, the customer may claim compensation for any damage caused by the delay; in the event of slight negligence on the part of APA this claim shall be limited to 0.5% of the contract price per calendar week or part thereof, in total not more than 5% of the agreed contract price.

After unsuccessful expiry of the grace period, the client is entitled to withdraw from the contract by written declaration and to claim damages instead of the service. This is limited to a maximum of 20% of the agreed purchase price in the event of slight negligence.

If APA is unable to deliver by chance during the delay in delivery, APA shall nevertheless be liable in accordance with the above provisions, unless the damage would also have occurred in the event of delivery on time..

VI. Transfer of risk and acceptance

1. Unless otherwise stated in the order confirmation, delivery shall be “ex works/warehouse/shipping station”.

2.The risk of accidental loss and accidental deterioration of the subject matter of the contract shall pass to the Client upon handover, in the case of sale by delivery to a place other than the place of performance, upon delivery of the item to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment.

3. The handover shall be deemed to have taken place if the client is in default of acceptance.

VII. Retention of title

1. The delivered products shall remain the property of APA until full payment of the purchase price as well as all claims of APA from current business relations with the customer. The retention of title shall also apply to all claims which APA subsequently acquires against the customer in connection with the delivery of products, e.g. through supplementary deliveries or other services.

2. At the request of the customer APA shall be obliged to waive the reservation of title if and to the extent that the customer has fulfilled all claims in connection with the delivery and adequate security otherwise exists for the remaining claims from the ongoing business relationship. Furthermore, in the event of overcollateralisation by more than 10% APA shall be obliged to release part of the collateral taking into account the interests of the client.

3. The client shall be entitled to resell the deliveries of goods in the ordinary course of business; however, it hereby assigns to APA all claims in the amount of the agreed purchase price accruing to the client from the resale, irrespective of whether the deliveries are resold without or after processing. The client is authorised to collect these claims after their assignment. APA agrees not to collect the receivables as long as the customer duly meets its payment obligations and is not in default of payment. Otherwise APA may demand that the customer discloses the assigned claims and their debtors, provides all information required for collection
and the associated documents and informs the debtors (third parties) of the assignment.

4. The processing or transformation of the products by the customer shall always be carried out for APA. If the delivery items are processed with other items not belonging to APA, APA shall acquire co-ownership of the new item in the ratio of the value of the delivery items to the other processed items at the time of processing.

If the delivery items are inseparably mixed with other items not belonging to APA, APA shall acquire co-ownership of the new item in the ratio of the value of the delivery items to the other mixed items. The client shall hold the co-ownership in safe custody for APA.

5. As long as the reservation of title exists, a sale, pledge, transfer by way of security, lease or other transfer or modification of the delivery items impairing APA’s security shall only be permissible with APA’s prior written consent.

6. In the event of seizure by third parties, in particular in the event of seizure of the delivery of products, the client shall immediately notify APA in writing and shall immediately inform the third party of APA’s retention of title.

7. The client has the obligation to keep the goods in proper condition and store them for the duration of the retention of title so that damage is avoided as far as possible.

8. APA shall be entitled to rescind the contract and demand return of the goods in the event of conduct by the customer in breach of the contract, in particular in the event of default in payment or breach of an obligation under Section VII.

VIII. Warranty

1. Information in descriptions and brochures valid at the time of conclusion of the contract concerning the scope of delivery, appearance, performance, dimensions and weights, operating costs, etc. of the subject matter of the contract are to be regarded as approximate and are not warranted characteristics unless they are decisive for the conclusion of the contract.

2. If the subject matter of the contract has a defect which already existed at the time of transfer of risk, APA shall always be given the opportunity for subsequent performance. APA is entitled at its own discretion to remedy the defect or to make a replacement delivery. If subsequent performance by APA fails, is unreasonable for the customer or if APA notifies the customer within 14 days of receipt of the notice of defects that it will not carry out subsequent performance, the customer may – without prejudice to any claims for damages – withdraw from the contract or reduce the contract price. In the event of only insignificant deviation from the agreed quality or in the case of only
insignificant impairment of usability, the customer shall not be entitled to any claims based on defects.

3. If the Client chooses to withdraw from the contract due to a legal or material defect after subsequent performance has failed, he shall not be entitled to any additional claim for damages due to the defect. If the Client chooses compensation for damages after subsequent performance has failed, the goods shall remain with the Client if this is reasonable for him. Compensation shall be limited to the difference between the contract price and the value of the defective item. This shall not apply if APA has fraudulently caused the breach of contract.

4. Warranty obligations shall not exist if the defect or damage has arisen due to the fact that the customer has not reported a defect or has had a defect recorded, the customer has not immediately given the opportunity to remedy the defect despite being requested to do so, the delivery has been handled improperly, the goods have been modified in a manner not approved by APA or the customer has not complied with the regulations on the handling and care of the goods (e.g. instructions).

5. Natural wear and tear is excluded from the warranty. Defects in part of the delivered goods do not entitle the customer to complain about the entire delivery, unless the partial delivery is of no interest to the customer. Excess or short deliveries of up to 10 % of the ordered goods shall be deemed to be performance in accordance with the contract and cannot be objected to insofar as they are based on technical production reasons. The quantity actually delivered is always charged. Minor deviations from templates to the final product cannot be avoided in all manufacturing processes and are therefore not objectionable, provided that the goods ordered by the client are not relevantly changed as a result.

6. Specifications and deliveries (including data carriers and data transmissions) by the customer or a third party engaged by the customer shall not be subject to any duty of review on the part of APA. This does not apply to data that is obviously unprocessable or unreadable or specifications that are obviously defective. In the case of data transmissions, the Client shall use state-of-the-art virus protection programs prior to transmission. APA does not back up data, but APA shall be entitled to make a copy of the data and to keep it confidential.

7. The customer shall not receive any guarantees in the legal sense from APA. Manufacturer’s guarantees remain unaffected by this.

8. APA shall be liable for deviations in the quality of the material used only up to the amount of its own claims against APA’s material supplier.

9. Notwithstanding the above provisions, used contractual items shall be delivered and sold to the exclusion of any warranty for material defects.

10. Claims for defects on the part of the customer presuppose that the customer has properly fulfilled its obligations to inspect the goods and give notice of defects in accordance with §377 of the German Commercial Code (HGB).

IX. Liability

1. APA’s liability – irrespective of the legal grounds – for damage resulting from injury to life, body or health shall be governed by the statutory provisions.

2. Apart from that, APA shall only be liable for other damage – irrespective of the legal grounds – if APA, its legal representatives or vicarious agents have caused such damage intentionally or by gross negligence. The personal liability of APA’s legal representatives, vicarious agents and employees for damage other than that listed in No.1 shall be excluded if the damage was only caused by slight negligence.

3. The aforementioned under para. 2 The limitations of liability set out above shall not apply in the event of a breach of material contractual obligations. Material contractual obligations are those whose breach leads to a claim for damages in lieu of performance pursuant to §§ 280,281,283 or 311a BGB.

4. Claims for damages by the customer against APA or its employees due to breach of material contractual obligations shall be limited to the amount of the order value, unless liability is assumed due to intent, gross negligence, assumed procurement risk or injury to life, body or health.

A change in the burden of proof to the detriment of the Client is not associated with the above provisions.

5. In the event of a delay in delivery, the lump-sum damages pursuant to Section V above shall also apply.

6. If APA is compulsorily liable under the Product Liability Act for property damage or personal injury caused by defects in a product, the provisions of the Product Liability Act shall apply with priority. For an internal compensation according to § 5 sentence 2 of the Product Liability Act, the above provisions shall apply.

7. The client alone is responsible for compliance with legal, official and trade association regulations when using the goods/services.

X. Limitation of warranty claims and claims for damages; preclusion period

1. Warranty claims and claims for damages shall become statute-barred 12 months after delivery of the subject matter of the contract. This does not apply insofar as the law pursuant to §§ 438 para. 1 No. 2 (structures and objects for structures), 479 para. 1 (right of recourse) and 634 a para. 1 No. 2 (construction defects) BGB prescribes longer periods, APA can be accused of fraudulent intent or gross negligence as well as in the event of bodily injury or damage to health attributable to APA or in the event of loss of life of the client.

2. If claims for damages are asserted, they must be asserted by legal action within four months after written rejection by APA. A later assertion is excluded unless a procedure for the preservation of evidence has been initiated.

XI. Copyright and rights of use

1. All work and ideas provided in terms of design and conceptual content shall remain the sole intellectual property of APA. All copyrights and rights of use are held exclusively and for an unlimited period by APA. Any application of the work performed and the disclosed idea by the client beyond that described in the specific order case shall require written approval by APA.

2. If APA’s deliveries/services are based on artwork or similar specifications of the customer, the customer shall be solely responsible for checking the right of use and reproduction. If third party rights – in particular copyrights – are infringed by APA’s deliveries/services, the customer shall be solely liable in the internal relationship with APA. He shall indemnify APA against all claims of third parties and reimburse APA for the necessary legal costs.

XII. IImprint and permission to reproduce

1. APA may refer in a suitable manner to its capacity as manufacturer and in particular to its company on all delivery items, provided this does not impair the overall impression of the product.

2. APA may print and publish images or photographs of the advertising product produced by APA for the customer in print media, brochures, the Internet or comparable media for the purpose of self-promotion without any time limit.

XIII. Data protection

Pursuant to Section 33 of the German Federal Data Protection Act (BDSG), the customer is informed that his data will be stored by APA solely for the purpose of processing the contractual relationship. The data is processed in compliance with the Federal Data Protection Act.

XIV. Ancillary provisions

1. German law shall apply exclusively, to the exclusion of the laws on the international purchase of movable goods, even if the client has its registered office abroad.

2. The place of performance for the delivery shall be APA’s works or the shipping station. The place of performance for payment shall be the registered office of APA.

3. The exclusive place of jurisdiction for all present and future claims arising from the business relationship with fully qualified merchants, including claims based on bills of exchange and cheques, shall be APA’s registered office in Neuwied.

4. The same place of jurisdiction shall apply if the Client does not have a general place of jurisdiction in Germany, moves its place of residence or habitual abode out of Germany after conclusion of the contract or its place of residence or habitual abode is not known at the time the action is brought.

5. The invalidity of one or more provisions shall not affect the validity of the remaining provisions. Should any provision in these terms and conditions be or become invalid or should a loophole become apparent, an appropriate provision shall apply in this respect which comes as close as legally possible to what the parties intended or, had they considered the point, would have intended.

Status 01.08.2010

 

General Conditions of Purchase

I. Scope

1.The following terms and conditions of purchase apply to all orders placed by APA Promotion GmbH and APA Brands Events Solutions GmbH & Co. KG (all in short: APA).

2. They apply exclusively. APA shall not recognize any terms and conditions of the supplier conflicting with or deviating from our terms and conditions of purchase, unless APA has expressly agreed to their validity in writing. The Terms and Conditions of Purchase shall also apply if APA accepts the supplier’s delivery without reservation in the knowledge that the supplier’s terms and conditions conflict with or deviate from APA’s Terms and Conditions of Purchase. The terms and conditions of purchase set forth in the written purchase orders shall not be excluded hereby.

The Terms and Conditions of Purchase shall also apply to all future transactions with the Supplier.

II. Invoice, payment, assignment

1. invoices must be sent separately. They must not be enclosed with the shipment of goods in any case.

2. claims against APA may only be assigned to third parties with APA’s prior consent.

3. APA shall be entitled to rights of set-off and retention to the extent provided by law.

III. delivery time

(1) The supplier shall be obliged to notify APA in writing without delay if circumstances occur or become apparent to the supplier which indicate that the agreed delivery time cannot be met.

2. in the case of time-bound orders, i.e. if the performance is to be effected at a precisely fixed time or within a fixed period, APA may, if the performance is not effected at the fixed time or within the fixed period, withdraw from the contract without prior warning and/or claim compensation for the damage caused by the delay (delay damage). APA may claim damages instead of performance in accordance with the statutory provisions.

3. if APA insists on performance, APA shall give notice thereof without undue delay after the expiry of the time or period. If a contractual penalty has been agreed, it may be claimed in addition to performance. Further rights and claims remain reserved.

IV. Delivery, Dispatch, Transfer of Risk, Packaging, Acceptance, Taking Back

1. the goods must be delivered strictly neutral without manufacturer or dealer information.

(2) Unless otherwise agreed in writing, delivery shall be made free domicile. All shipments shall include free, proper shipping packaging. Packaging costs may only be claimed if APA has expressly agreed thereto in advance, and even then only to the amount of the material value at cost price.

3. the risk of accidental loss of the goods shall pass to APA only upon receipt of the delivery by APA.

4. APA shall be entitled to return the packaging material to the supplier at the supplier’s expense and risk.

5. partial or excess deliveries require prior written consent and must then be marked as such. Excess deliveries may not be charged. In the event of short deliveries, APA shall either be entitled to cancel the same with the consequences set forth in the foregoing para. § III 2 to reject (in the case of unapproved partial delivery) or to assert the statutory warranty rights.

6. if the shipment is made directly to customers of APA, delivery bills of APA shall be used. Packages shall be labeled with labels provided by APA or as required by APA.

7. when shipping to APA, all palletizable items shall be delivered on Euro pallets. The packed pallet, including the pallet base, must not exceed a maximum height of 1.25 m, taking care that the packages do not protrude above the pallet.

8. in the event of non-compliance with the shipping instructions, APA shall be entitled, at its discretion, to return the consignment to the Supplier freight collect or to charge the Supplier for the costs incurred by the non-compliance.

V. Provision of material, documents, data by APA; investigation

1. the contractor shall inspect the material, documents etc. provided by APA for defects and processability and operability immediately upon receipt. Any complaints shall be notified to APA in writing without delay or, in case of imminent danger, verbally/by telephone.

2. the templates provided by APA shall serve exclusively for the performance of the order. Transfer to third parties is not permitted without express written permission.

3. the materials, documents and data provided to the contractor shall be treated as strictly confidential. They may only be used as intended and only for APA’s orders and may only be made available to third parties with APA’s written consent. Upon request, they shall be delivered to APA without delay and free of charge. The obligation to maintain secrecy shall also apply after the contract has been completed; it shall expire if and to the extent that the production knowledge contained in the data and documents provided has become generally known. This shall be without prejudice to the provisions of any individual customer protection and confidentiality agreement concluded with the Supplier.

4. any data stored in agreement with APA shall be backed up and maintained by the contractor. The employees commissioned with this are to be obligated to maintain data secrecy in accordance with the BDSG and these GTC. The usability of the data must also be guaranteed in the event of a change of system by the contractor.

VI. Retention of title and property rights

(1) The Supplier warrants that no rights of third parties within the Federal Republic of Germany and Europe are infringed in connection with its delivery. This shall also apply with regard to any retention of title Upon acceptance by APA, ownership and unrestricted power of disposal shall pass to APA. If the delivered goods are assigned or pledged as security in whole or in part or if other property rights exist in favor of third parties in addition to those under IX. and if claims are asserted against APA by third parties for this reason, the supplier shall be obliged to indemnify APA against these claims upon first written request, APA shall not be entitled to make any agreements with the third party – without the supplier’s consent. The indemnification obligation shall relate to all expenses necessarily incurred by APA from or in connection with the claim by the third party. The statute of limitations for these claims is ten years, beginning with the conclusion of the contract.

(2) The materials and documents produced on behalf of APA or handed over to the contractor for execution of the order, including all preliminary, intermediate and waste products (press proofs, semi-finished products, drafts, negatives, lithos, printing plates, films, advertising texts, data carriers, plates, montages, etc.) as well as all materials procured by the contractor in the name of or on behalf of APA shall remain or become the property of APA. They shall be stored separately and marked as the property of APA. If APA provides parts to the supplier or if the supplier obtains possession of the items referred to in sentence 1 of this paragraph, APA shall retain title thereto. Processing and/or transformation shall be carried out by the supplier for APA. In the event of processing with other items not belonging to APA, APA shall acquire co-ownership of the new item in proportion to the value of the item (net price) at the time of processing. This also applies to blending. Should this result in the Supplier’s item being regarded as the main item, the Supplier shall transfer pro rata co-ownership. To the extent that the existing security interests exceed the purchase price of all goods subject to retention of title to which APA is entitled and which have not yet been paid for by more than 10%, APA shall be obliged to release the security at the supplier’s request at APA’s option.

3. the supplier shall keep the sole and/or co-ownership. Costs for storage, care, maintenance and operation shall be borne by the Contractor. He shall be liable for loss and damage and shall be obliged to insure the same at the material value against fire, water and theft damage at his own expense and to furnish proof thereof upon request. Storage with third parties shall only be permitted with APA’s written consent. Upon delivery of the order all originals etc. shall also be returned to APA without special request.

(4) The provisions of Clauses 2 and 3 above shall also apply to raw materials and parts which are to be processed by the contractor for APA at a later date within the scope of work performance but which have otherwise already been paid for by APA and stored by the contractor.

(5) For inventories of goods owned by APA and stored by the Contractor, the Contractor shall carry out internal inventory monitoring on an ongoing basis. A physical inventory shall be taken once a year by the Contractor. The inventories determined in this way are reported to APA in each case for the purpose of reconciliation. The basis for all inventory comparisons shall be the quantities invoiced to APA. The Contractor shall be compensated for any shortfalls that may arise in the process.

6. goods owned by APA may not be pledged, transferred by way of security or handed over to third parties without consent.

VII Notice of Defects, Warranty, Liability

(1) In the event of defectiveness of the delivery, APA shall be entitled to the statutory warranty claims. APA shall be entitled to remedy any defects itself at the supplier’s expense if there is imminent danger or special urgency.

2. the contractor shall also be liable for all, in particular also indirect, damage incurred by APA due to non-delivery, delayed delivery or delivery not in accordance with the order, due to improper packaging or improper transport. The contractor is again advised that APA renders its own services and supplies to third parties who may suffer high consequential economic losses, e.g. due to loss of advertising revenues, in the event of defects or delays in the services or non-performance by APA, and that these may be compensated by APA. claim against APA.

VIII Product and producer liability

(1) To the extent that the Supplier is responsible for product damage, it shall be obliged to indemnify APA internally against claims for damages by third parties. He shall indemnify APA upon first request insofar as he has acted in an external relationship – if applicable. besides APA – is directly liable.

(2) In this context the supplier shall also be obliged to reimburse any expenses pursuant to Sections 683, 670 of the German Civil Code (BGB) arising from or in connection with a recall action carried out by APA, unless the claim follows from Sections 830, 840 of the German Civil Code (BGB) in conjunction with Sections 426, 254 of the German Civil Code (BGB). §§ 426, 254 BGB. APA shall inform the Supplier about the content and scope of the recall measures to be carried out – as far as possible and reasonable – and give him the opportunity to comment.

3. APA shall have the right to enter into settlements with third party claimants; the contractor’s obligation to pay compensation shall remain unaffected as long as the settlements are economically necessary and reasonable.

(4) In the case of products manufactured or distributed under license, APA’s claims shall first be directed against the contractor, alternatively against its licensors or upstream suppliers.

IX. Rights of use and protection

1. APA shall have the exclusive right of use and exploitation of all delivery items for an unlimited period of time. The supplier shall not receive any right of use and/or exploitation. Reproductions, samples and, in particular, use for advertising purposes in the form of photographs or similar may only be made with the prior consent of APA. Reproductions, samples and in particular advertising use in the form of photos or similar representations may only be made with the prior consent of APA.

2. the supplier shall be liable for ensuring that no patents or other industrial property rights of third parties are infringed by his delivery and its exploitation by APA. He shall indemnify APA and its customers against all claims arising from the use of such property rights. This shall not apply insofar as the supplier has manufactured the delivered goods according to drawings, models or other equivalent descriptions or instructions on the part of APA and does not know or cannot know in connection with the products manufactured by him that property rights are infringed thereby.

3. with regard to the conclusion of settlements with third party claimants, Clause VIII. Para. 3 accordingly.

X. Special conditions for print objects

1. the printed matter ordered by APA may not bear any endorsements, in particular none of the manufacturer, in addition to the imprint or agency line placed by APA.

2. partial/excess or short deliveries shall only be admissible after prior agreement with APA.

3. the contractor shall always provide APA with two approval samples free of charge for review. The order may only be executed after declared release by APA. In any case, the approved, signed sample shall be binding for series production and shall be provided to APA in duplicate for documentation purposes with a test note. Deviations, even of a gradual nature, are only permissible after renewed approval.

4. artwork, films, tools or comparable items shall become the property of APA even if they are charged as “pro rata costs”. APA shall at all times be entitled to claim restitution from the supplier.

The supplier shall not be entitled to offset this claim against its own claims or to exercise a right of retention.

XI. Ancillary provisions

(1) German law shall apply exclusively, to the exclusion of the laws on the international sale of movable goods, even if the Contractor has its registered office abroad.

2. place of performance for the delivery shall be the registered office of APA or the place of delivery expressly specified by APA.

(3) The exclusive place of jurisdiction for all present and future claims arising from the business relationship with fully qualified merchants shall be APA’s registered office in Neuwied/Rhein.

The same place of jurisdiction shall apply if the Contractor does not have a general place of jurisdiction in Germany, moves its place of residence or habitual abode out of Germany after conclusion of the contract or its place of residence or habitual abode is not known at the time the action is brought.

5. the invalidity of one or more provisions shall not affect the validity of the remaining provisions. Should any provision in these Terms and Conditions be or become invalid or should a loophole become apparent, an appropriate provision shall apply to the extent that it comes as close as legally possible to what the parties intended or, had they considered the point, would have intended.

Status 01.08.2010