General Terms and Conditions of Sale,
Delivery and Payment of Resonac Products
1.

Application of the Terms and Conditions

These General Terms and Conditions of Sale, Delivery andPayment of Resonac Products (hereinafter “Terms and Conditions”)
apply exclusively, even without separate reference, to all – including
future – offers, order confirmations and contracts for deliveries andservices between Resonac Corporation (“Resonac”) and any buyer ofResonac Products (“Buyer”). “Resonac Products” are all goods which
are distributed by Resonac or its commercial agents or affiliatedcompanies, in particular under the brand name ResonacTM.
(1)

Resonac does not acknowledge, does not agree with and hereby
explicitly rejects any terms and conditions of the Buyer or any third
party that conflict with or deviate from these Terms and Conditions.
Terms and conditions of the Buyer or third parties shall not apply, even
if Resonac does not explicitly object to their application separately after
receipt, refers to a document, that contains or refers to the terms andconditions of the Buyer or a third party or performs the contract without
expressing any reservations.
(2)

Trade terms shall be interpreted in accordance with the
INCOTERMS 2020. Unless expressly agreed otherwise in writing,delivery shall be made EXW at the respective plant of Resonac or theplace of delivery of the Resonac sales representative.
(3)

2.

Initial cost estimates, including drawings and any diagrammatic
views required to elaborate such cost estimates, shall be delivered freeof charge. If other documents are prepared in addition thereto upon the
Buyer’s request (drafts, plans, drawings, calculations of strength andstability, etc.) which exceed the initial offer, and if Resonac is notawarded the contract, Resonac shall be entitled to charge reasonable
compensation in accordance with the requested special expenditure ofwork.
It is agreed between Resonac and the Buyer that all of theinformation, drawings, data, etc. mutually provided may be used
exclusively to the extent necessary for the transactions implemented inaccordance with the Contract. Any other use, including, but not limited
to, a disclosure to third parties, is strictly prohibited.
(2)

Offers, Conclusion and Scope of Contracts

All offers and quotations of Resonac are subject to modification,
are non-binding unless they are expressly marked as binding in text formor contain a specific acceptance period and are to be understood as aninvitation to the Buyer to submit an offer or purchase order for theconclusion of a contract with Resonac.
(1)

The scope of Resonac’s contractual and delivery obligations shallbe determined exclusively by the content of the contract concluded by
the Buyer’s purchase order and Resonac’s respective orderconfirmation, which both require text form (“Contract”). Resonac shallhave the right to decide on its sole discretion which of its groupproduction plants or affiliates will produce the Resonac Products andpurchase the raw material. The assembly, installation, operation of theResonac Products and the supervision of the production facilities of theBuyer are not included in the scope of the agreed contractual services
of Resonac. Instruction of the responsible employees of the Buyer withregard to the use of the equipment and the Resonac Products, regular
maintenance and servicing as well as regular inspection of thefunctionality of the equipment and testing of the functionality of theResonac Products and the conformity of the Technical Specifications
before their use are exclusively the responsibility of the Buyer.
(2)

Unless otherwise agreed, the quality of the Resonac Products shallbe exclusively determined by Resonac’s technical specifications
contained in or attached to Resonac’s order confirmation (“Technical
Specifications”). Relevant “identified uses” for the Resonac Products
according to the Regulation concerning the Registration, Evaluation,
Authorization and Restriction of Chemicals (“REACH Regulation”) andany other similar rules and regulations which may be applicable to therelevant transactions shall neither constitute an agreement on acorresponding contractual quality of the Resonac Products nor a(3)

Any written or verbal orders submitted by the Buyer and any otherverbal agreements as well as verbal side agreements, commitments
and/or warranties become effective and binding only by confirmation
by Resonac in text form (incl. e-mail, fax). For Resonac, the power ofrepresentation of Resonac’s representatives and employees is expressly
limited in this respect.
(4)

Conditions of patterns and samples are only binding if they havebeen explicitly agreed as conditions of the Resonac Products.
(5)

Statements as to the quality of our products do not constitute a
guarantee unless Resonac has explicitly designated them as aguarantee. Identified usages for Resonac Products in accordance with
REACH-Directive and any other similar rules and regulations which may
be applicable to the relevant transactions do neither constitute anagreement regarding a respective condition of the Resonac Products
nor an agreement regarding a specific usage of the Resonac Products.
(6)

Pre-contractual Services

(1)

3.

presumed or intended use according to the contract. Likewise, technicalspecifications and other details contained in quotations and offers,
brochures, websites and other sources of information have no binding
effect. Technical Specifications are based on technical findings fromexperimental test and various applications in practice, and thus are in
no event to be considered warranted characteristics for the specific caseof application.

4.

Prices and Terms of Payment

Unless otherwise agreed, purchase prices are payable
immediately on receipt of the Resonac Products, however, no later than
14 days from the date the invoice has been received, by bank transfer.
Payments in cash are not accepted. Payments are deemed to have been
duly completed with effect from the date on which the amount is atResonac’s free disposal. The deduction of cash discount requires a
special written agreement. The Buyer must pay any taxes or customs
duties, etc. levied on the transaction in the country of receipt.
(1)

Default in payment of the agreed purchase price when due
constitutes a material breach of the contractual obligations. In the eventof reasonable doubt concerning the solvency of the Buyer, in particularin the event of default in payment, Resonac may, without prejudice tofurther claims, withdraw previously agreed payment terms and makefurther deliveries conditional upon the provision of other securities oradvance payments.
(2)

Other forms of payment require a separate written agreement.
The Buyer pays the costs incurred by both parties for such forms of
payment.
(3)

If there is a change in the costs incurred by Resonac for delivery
between Resonac’s quotation or confirming the order until delivery, e.g.
as a result of the subsequent introduction of - or an increase in - duties,
taxes or other charges imposed on Resonac Products, including but notlimited to applicable duties and anti-dumping duties or countervailing
duties or similar or in the event of a change in currency parities, Resonac
is entitled to adapt the price offered or agreed accordingly.
(4)

Resonac’s price quotations are net prices and do not include any
applicable tax. Unless agreed otherwise, Resonac’s prices are calculated
excluding freight and insurance costs. If any applicable tax must be
charged it will be shown separately on the invoice at the statutory rate
in application on the date of issue of the invoice.
(5)

The Buyer may exercise a right of withholding or set-off only withregard to receivables or claims of the Buyer that are undisputed or havefinal and legally binding effect.
(6)

If the Buyer is in default, Resonac is entitled to default interest in
the amount of 9% above the base interest rate which was applicable atthe date the default has occurred.
(7)

Resonac is entitled to assign due receivables to third parties. At
Resonac's request the Buyer is obliged to consent to the assignment ofreceivables, if no legitimate interests to refuse his consent exist or if thelegitimate interests of Resonac in the assignment of the claim prevail.
(8)General Terms and Conditions of Sale, Delivery and Payment of Resonac Products

5.

DeliveryResonac’s delivery dates or delivery periods are non-binding,unless a specific delivery date or delivery period has been expressly
agreed or designated as binding. If Resonac’s order confirmation
indicates “No confirmed delivery date determined yet” then the
Resonac Products must first be manufactured or shipped to Resonac. In
this case the non-binding delivery period will be 2 months from the dateof Resonac’s order confirmation.
(1)

Six weeks after expiry of a non-binding delivery date or delivery
period, the Buyer may request Resonac to set a reasonable subsequent
date for delivery in writing.
(2)

If the Buyer can reasonably be expected to accept partial
deliveries, these may be made and invoiced.
(3)

If it becomes apparent after conclusion of the Contract that the
Buyer is unable to provide an adequate guarantee of its solvency andour claim to payment is in danger, Resonac is entitled to refuse delivery
until the Buyer has effected payment or furnished security for the same.
If no payment is made or security furnished within 12 working days of arequest to this effect, Resonac is entitled to rescind the Contract.

2 of 4or governmental order, expropriation, seizure of works, requisition,nationalization; e) plague, epidemic, natural disaster or extreme natural
event; f) explosion, fire, destruction of equipment, prolonged breakdown of transport, telecommunication, information system or energy
supplies; g) general labor disturbance such as boycott, strike and lockout, go-slow, occupation of factories and premises general
unavailability of raw material, fuel or gas supplies, unavailability ofcarriers, the use of railways, shipping, aircraft, motor transport, or any
other means of public or private transport.
Resonac shall notify the Buyer without delay in such a case. If the
impeding circumstances last longer than two months after expiry of theagreed delivery period, either party may rescind the Contract. Further
claims based on Resonac’s failure to deliver within the delivery period
for reasons for which Resonac is not resposible are excluded.
(3)

(4)

If the Buyer is in default with a release order, acceptance orcollection or the Buyer is responsible for a delay in shipment or delivery,
Resonac is entitled, without prejudice to other claims, to require a flat
rate amount equal to local storage costs, regardless of whether theResonac Products are being stored with Resonac or a third party. The
Buyer has the right to prove that either no damages or lower damages
were suffered.
(5)

If Resonac fails to receive delivery items, raw materials, required
substances, energy or gas from Resonac’s own suppliers, although
Resonac placed respective orders with reliable suppliers undersurveyance of the standard of care of a prudent business person,
Resonac is released from its obligation to deliver and canrescind theContract if Resonac is not responsible for the non-deliverance. Resonac
will inform the Buyer about the non-disposability of the deliveries
without undue delay and if Resonac decides to withdraw from theContract Resonac will do so immediately. If Resonac informs the Buyer
about the non-disposability of the deliveries the Buyer also has the rightto withdraw from the Contract. In case the Contract is rescinded
Resonac will reimburse the purchase price as far as it has already been
paid.
(6)

In the event of the Buyer cancelling the Contract without cause,
Resonac is entitled to require 20% of the gross order value as liquidated
damages (damages in lieu of performance). The same applies if theContract is not performed for reasons for which the Buyer is
responsible. The Buyer has the right to prove that either no damages orlower damages were suffered.
(7)

If the Buyer suffers damages as a result of default in delivery, theBuyer is entitled to claim 3% of the value of the delivery for each fullweek of default as liquidated default damages, however, a maximum of
10% of the value of the delivery. The Buyer can also request Resonac toset a reasonable subsequent date for delivery in writing after the sixweeks-period in clause 5 section (2) has been elapsed. If this subsequent
deadline passes without issue, the Buyer is entitled to rescind theContract or claim damages in lieu of performance.
(8)

Clause 5 section (8) above does not apply if default is due tointent, gross negligence or breach of an essential duty. It also does not
apply if a transaction for delivery by a fixed date was agreed.
(9)6.

Force Majeure

If Resonac is unable to adhere to its contractual obligations as aresult of unforeseeable circumstances beyond Resonac’s control(“Force Majeure Event”) affecting Resonac or its suppliers, Resonac isrelieved from our contractual obligations for the period of existence andto the extent of the consequences of the Force Majeure Event. In thiscase the agreed delivery period is extended accordingly.
(1)

In particular but without limitation the following events are
considered as Force Majeure Events:(2)a) war (whether declared or not), hostilities, invasion, act of foreign
enemies, extensive military mobilization; b) civil war, riot, rebellion andrevolution, military or usurped power, insurrection, act of terrorism,
sabotage or piracy; c) currency and trade restriction, embargo, sanction;d) act of authority whether lawful or unlawful, compliance with any law

7.

Warranty, Defects

The Buyer shall adhere to the statutory duties of examination for
defects in respect to the delivered Resonac Products and submission of
any notices required under applicable law.
(1)

The Buyer cannot derive any further rights from material defects
that do not affect the value or suitability of the Resonac Products forthe purpose reasonably recognizable to Resonac or do so merely to anegligible extent.
(2)

If the Resonac Products show defects at the time of passing therisk, Resonac is entitle and obliged to subsequent performance. At
Resonac’s sole discretion, subsequent performance can take place bysubsequent improvement or replacement delivery provided that this isreasonable for the Buyer. The costs of subsequent performance, inparticular, transport costs, travelling expenses, labor costs and material
costs are at Resonac’s expense. Resonac is entitled to refuse thesubsequent performance until the Buyer has paid the purchase price.
However, Buyer is entitled to retain a part of the purchase price which
is appropriate in relation to the respective defect.
(3)

If subsequent performance is unsuccessful, is unreasonable for
the Buyer, does not take place within a reasonable period of time set by
the Buyer or is refused, the Buyer may, at its own discretion, rescind theContract, require a reduction in the selling price that corresponds to the
reduction in value resulting from the defects or – within the limits of thefollowing section 8 (Liability) – claim damages in lieu of performance.
(4)

If a defect is caused by intent or negligence of Resonac, the Buyer
may claim damages under the conditions specified in Clause 8.
(5)8.

Liability

Unless otherwise stated in these Terms and Conditions including
the provisions below, Resonac’s contractual and non-contractual
liability is based on the relevant statutory provisions.
(1)

For damages caused by intent or gross negligence, Resonac shallbe liable irrespective of legal basis. In case of simple negligence,
Resonac is only liable:(2)a)

for damages resulting from death or personal injury;b)for damages resulting from the breach of an essential contractual
duty, which is an obligation of the fulfilment of which is a prerequisite
for the proper execution of the contract and on the fulfilment of which
the contracting party regularly relies and is entitled to rely on (“Cardinal
Duty”); in this case, Resonac’s liability is limited to foreseeable damages
that are typically associated with the contract at the time of its
conclusion. Resonac is not liable for a breach of non-essential
contractual duties through simple negligence.
Indirect and consequential damages resulting from defects ofResonac Products are only recoverable as far as such damages are
typically to be expected at the time of conclusion of the Contract with
the Buyer. Resonac has typically no information of the extent of loss
mitigation measures and the extent of the Buyer's production planningand capacity or any actual or expected turnover or profits, ordervolume, or the nature, number and extent of the Buyer's customer
relationships and purpose of the Buyer’s products. Therefore, loss of
income, loss of actual or anticipated profits or loss of production is notcomprised by the foreseeable, typically to be expected damage if
information in this respect has not become the basis of the contract due(3)General Terms and Conditions of Sale, Delivery and Payment of Resonac Products

3 of 4to lack of due notice to Resonac before conclusion of the Contract. This
provision shall not apply in the event of intentional or grossly negligent
conduct by members of the Resonac's corporate bodies or executive
employees.

(6)

The limitations of liability as to Clause 8 sections (2) and (3) do not
apply if Resonac should fraudulently have concealed a defect or given aguarantee as to the workmanship of the Resonac Product.

(7)

(4)

Resonac shall not be liable in case of impossibility or delay in theperformance of delivery obligations, if such impossibility or delay iscaused by Buyer's proper compliance with public law obligations.
(5)

If Resonac’s liability is excluded or limited, the personal liability of
Resonac’s executive bodies, employees, representatives and agents islimited or excluded to the same extent.

In the event of attachments or other intervention by third parties,
the Buyer must notify Resonac without delay in writing. The Buyer isprohibited from making any agreements with its purchasers that could
impair Resonac’s rights.
the Buyer is obliged to insure the retained-title Resonac Products
against theft, mechanical damage, fire and water damage.
Resonac undertakes to release securities held by itself to theextent to which the fair market value of such securities exceed therealizable value of the receivables to be secured by more than 10% or
the nominal value of the securities by more than 50%.
(8)

(6)

To the extent that Resonac provides technical information or acts
in an advisory capacity and this information or advice is not part of thecontractually agreed scope of performance owed by Resonac, this shallbe provided free of charge and with the exclusion of any liability.
(7)

9.

Limitation Period

The Buyer’s right to request for Resonac’s subsequent
performance becomes time-barred one year after delivery of theResonac Products subject to the Japanese Commercial Code and theJapanese Civil Code.
(1)

The limitation period for claims to damages is five years subject to
the Japanese Commercial Code and the Japanese Civil Code.
(2)

10.

Retention of Title

Title to the Resonac Products is reserved until settlement of all of
Resonac’s receivables due from the Buyer from the business relations,
including future receivables from the Contracts concluded at the sametime or at a later date and will be credited on Resonac’s account. The
same applies if receivables are entered in a current account and thebalance has been drawn and acknowledged.
(1)

The Buyer is entitled to sell or process the Resonac Products in thenormal course of business. The Buyer undertakes any processing on
Resonac’s behalf without this giving rise to any obligations on Resonac’s
part. In the event of the retained-title Resonac Products being
processed, combined or mixed with other Resonac Products, Resonac
always acquire a share of title in the newly produced item; in the eventof processing, this share of title represents the proportion of the value(= gross invoice value including ancillary costs and taxes) of the retainedtitle Resonac Products in relation to the value of the new item; in theevent of combining or mixing, this share of title represents the
proportion of the value of the retained-title Resonac Products inrelation to the value of the other Resonac Products.
(2)

However, the Buyer already now assigns all receivables from apurchaser or third party accruing out of its resale to Resonac. The Buyer
remains entitled to collect the receivable even after the assignment.
This does not affect Resonac’s authority to collect the receivables,
however, Resonac shall not exercise this right as long as the Buyer
continues to meet its payment and other obligations. If required, theBuyer must notify Resonac of the receivables assigned and theirdebtors, provide all details required for their collection, hand over the
relevant documents and notify the debtors of the assignment.
(3)

In the event of conduct in breach of the Contract by the Buyer
including, but not limited to, default in payment, Resonac is entitled torescind the Contract and recover the Resonac Product delivered. For the
purpose of recovering the Resonac Products, the Buyer hereby
irrevocably grants Resonac the right to enter its business premises andwarehouse premises unhindered and to take away the Resonac
Products.
(4)

As long as title is retained, the Buyer may not assign Resonac
Products or items made from the Resonac Products or pledge themwithout Resonac’s consent. Resonac’s prior written consent is required
for the conclusion of financing contracts (for example, leasing
agreements) that involve the transfer of Resonac’s rights of retention
unless the contract obliges the bank to pay Resonac its share of theselling price directly.
(5)

11.

Export Control

The Buyer ensures to be compliant with any applicable export
regulations. In particular the Buyer undertakes to accept and comply
with any applicable export control provisions (including, but not limited
to, Japanese export control provisions as well as the US (re-) export
requirements to the extent that the transfer / exportation to third
countries of the Resonac Products is subject to US law). In addition, theBuyer must inform himself of the relevant provisions and bears the
responsibility for complying with them. Aforementioned obligations arevalid insofar as they do not infringe any applicable provisions which may
be conflicting therewith. Therefore, subject to any applicable conflicting
provisions, neither Buyer nor Resonac shall be obligated to make any
payments, repayments or any other performance that may expose theBuyer or Resonac to the risk of being the target of any sanction,prohibition or other restriction under any applicable United Nations
resolution or under any applicable laws or regulations of Japan, theEuropean Union, the United Kingdom or the United States of America
relating to trade and economic sanctions.
(1)

The Buyer covenants to neither directly, nor indirectly sell, export,
reexport, deliver, pass on or make accessible otherwise the Resonac
Products to persons, organizations, institutions or to countries in casethis violates any applicable laws or regulations of Japan, the European
Union, the United Kingdom or the United States of America relating toexport control or embargo.
(2)

Upon request the Buyer is obligated to provide Resonac withadequate and complete information regarding the end use of thedelivered Resonac Products, especially to issue and provide Resonac
with an original of an end user certificate in order to enable Resonac toconfirm the end use and the purpose of use of the delivered Resonac
Products and to serve as prove towards the export control authorities.
(3)

12.

Confidentiality and Data Protection

Buyer agrees not to forward information that either was classified
as confidential or due to its contents obviously is confidential to third
parties. Buyer will take reasonable measures to prevent access to these
confidential data by unauthorized persons.
(1)

In cases where Resonac provides personal data of its employees
to Buyer or where Buyer receives this personal data in any other way,
Buyer is only allowed to process this data for the completion of theContract. Buyer will not process this personal data in any other way
except in cases where data processing is allowed by laws. Buyer ensuresthat personal data is only made accessible, to the extent required, tothose employees who are dealing with the completion of the Contract(Need-to-Know-Principle).
(2)

13.

General provisions

Place of performance is Resonac’s respective registered office or
any other places designated by Resonac through the consultation
between the parties.
(1)

Any dispute, controversy or claim arising out of, relating to, or inconnection with any agreement, Contract or transaction or concerning
the breach, termination or validity thereof shall be subject to the
exclusive jurisdiction of the Tokyo District Court as the court of first
instance.
(2)

The business relationship between Resonac and the Buyer, inparticular all Contracts, shall generally be governed by all substantive
laws of Japan.
(3)

(4)

All amendments, modifications or additions to any contract must

General Terms and Conditions of Sale, Delivery and Payment of Resonac Products

be in text form (incl. e-mail, fax) in order to be effective. The terminationof the contract by the Buyer or by Resonac requires the written form.
In case there is any discrepancy between the Contract and theseTerms and Conditions, the Contract shall prevail.
(5)

These Terms and Conditions replace all previous versions for theconclusion of all future contracts.
(6)

These general terms and conditions can also be accessed athttps://www.rgj.resonac.com/terms.html

Issue Date: June 13, 2023

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