Terms of Payment and Delivery

TERMS OF PAYMENT AND DELIVERY of FRESENIUS KABI Deutschland GmbH, Bad Homburg

§ 1 Offers Our offers are non-binding and subject to change without notice.

§ 2 Purchase contract 2.1 The contract of purchase is concluded when we confirm the order in writing or make the delivery. 2.2 These terms also apply to all future business relations with the purchaser even if they are not again expressly agreed. Purchaser’s differing terms and conditions which we do not expressly acknowledge in writing shall not be binding on us, including where we do not expressly object to these terms and conditions. 2.3 All previous terms shall cease to apply upon the issue of these General Terms of Payment and Delivery. 2.4 We may withdraw from this contract if a fundamental deterioration in the financial and/or liquidity situation of the purchaser occurs following the conclusion of a contract, or if such circumstances already existed at the time the contract was concluded but only subsequently become known, if the purchaser despite demand for payment is not simultaneously prepared to provide collateral security or make a payment in advance. 2.5 These terms apply to our deliveries to full merchants if the contract is part of the operation of their commercial business, to legal entities under public law and to special assets under public law.

§ 3 Prices 3.1 Orders placed by the purchaser will be carried out in accordance with the price list valid on the day of delivery. Statutory value added tax, as amended, will be added to the price. 3.2 Domestic deliveries of up to EURO 150.00 (net) (“Small Quantities”) are shipped ex works, packaging excluded. Domestic deliveries exceeding the value of EURO 150.00 are shipped free of charge, packaging included. For shipments abroad, sea or any other kind of packaging has to be expressly requested and will be at buyer's cost. 3.3 We reserve the right to ship small orders against cash on delivery (COD). 3.4 In case of orders of Small Quantities we reserve the right to demand an extra charge in the amount of EURO 17,90 for each order.

§ 4 Packaging Disposable packagings will not be taken back. No packaging material will be taken back for job or contract work.

§ 5 Shipment 5.1 Risk shall pass to purchaser upon shipment of the delivery, also if part deliveries are made or if we pay the shipment charges. 5.2 We reserve the right to choose the shipment route. 5.3 Special request regarding the type of shipment will, wherever possible, be complied with against reimbursement of additional costs.

§ 6 Delivery 6.1 If the order has been received prior to 3 pm the delivery will take place within 48 hours considering the logistical route planning. We reserve the right to make deliveries in other sizes and packages or to make replacement deliveries acceptable to the purchaser. In case the purchaser requires a delivery by the next working day or during a Saturday we reserve the right to charge the additional costs. 6.2 14 days after exceeding the agreed delivery date, the purchaser may demand in writing that we deliver within a reasonable period. We are deemed to be in default upon receipt of such notice. Other than the actual delivery, the purchaser may claim compensation for default damage only in case of gross negligence or willful conduct by us, our legal representatives or our vicarious agents.

§ 7 Payment 7.1 All payments by purchaser are deemed to be made upon the oldest unpaid invoice and will be offset against it. Purchaser’s diverging terms, if any, are irrelevant. 7.2 The purchaser may only set off against our claims for payment due or exercise a right of retention with undisputed or judicially determined counterclaims. 7.3 Payments must be made without deduction at the latest 30 days after the date of invoice. We grant 1% discount on payments made within 14 days. Bills of exchange are not deemed to be payment. If the period allowed for payment is exceeded, interest of 8 percentage points above the applicable base rate will be charged. Dunning and collection costs and charges will be charged to the purchaser. For job or contract work, the invoice amount is due for immediate payment without deduction.

§ 8 Non-conformance / claims in respect of defects 8.1 Agreements with respect to the nature of the goods must be made in writing. Details regarding the nature of the goods must be expressly described as such. The contractually agreed nature of the goods has priority over the nature which the purchaser has expected on account of public statements. Upon conclusion of the contract, the purchaser must notify us in writing of which of our public statements have influenced his purchasing decision. 8.2 A claim in respect of externally identifiable defects must be made without delay upon receipt of the goods, notice of concealed defects must be given forthwith after their discovery. If the delivery is made by a forwarder, the complaint or notice of defect must be noted on the waybill. 8.3 Any and all claims arising from defects in the goods delivered shall be limited to substitute deliveries. If the substitute delivery fails, the purchaser may, however, reserve the right in his discretion to demand reduction of the remuneration or, if the defects are not insubstantial, to withdraw from the contract. Any further warranty is ruled out, unless we, our legal representatives or our vicarious agents act willfully or with gross negligence or if we are culpably in breach of material contractual obligations or guarantees. Our liability shall remain unaffected in cases of death, physical injury or impairment of health, as well as in accordance with the laws relating to product liability and medical preparations. 8.4 Our warranty period is one year. 8.5 Returns may be made only with our written consent. We reserve the right to destroy at purchaser’s expense any goods returned to us without our request. Tuberculin preparations will on no account be taken back. No warranty regarding the nature of the material ordered and the resulting defects in the goods will be given for job or contract work.

§ 9 Resale 9.1 For domestic shipments, any and all packages must be sold to third parties with their packaging intact. Selling parts out of a package opened is not permitted. Resale of goods or any other disposition thereof into any other countries or outside regular business operation may only and exclusively be executed upon our previous consent. 9.2 In particular, the resale of Propofol into the United States of America, directly or indirectly via third countries or third parties, is prohibited. In case of contravention we will stop any deliveries of Propofol towards the purchaser immediately.

§ 10 Reservation of title 10.1 All deliveries shall remain our property until full payment of all claims and/or payment of all checks and bills of exchange has been received and until a purchaser’s current account debit balance, if any, is settled. This also applies to payments by check or bill of exchange. The purchaser shall bear full risk for the goods for the duration of our reservation of title, in particular the risk of loss, accidental perishing or accidental deterioration. In spite of our reservation, the purchaser is entitled to the resale of our goods in his ordinary course of business, as long as the purchaser does not experience a deterioration of his assets. The purchaser is not permitted to pledge, transfer by way of security or assign the goods for security. 10.2 The purchaser at this point assigns to us his claims from the resale of the goods under reservation of title. We accept this assignment. Notwithstanding the assignment and our right of collection, the purchaser is entitled to collection as long as he complies with his obligations in relation to us and does not experience a deterioration of his assets. Upon our request, the purchaser must provide us with the details necessary for the collection concerning the assigned claims and is obliged to notify the debtor of the assignment. The purchaser agrees to process the goods under reservation of title without any obligation arising for us therefrom. In the event of processing, blending, integrating or commingling the goods under reservation of title with other goods not belonging to us, the resulting co-ownership in the new goods shall accrue to us in proportion of the invoiced value of the goods under reservation of title to the remaining processed goods at the time of processing, blending, integration or commingling. If the purchaser acquires sole ownership of the new goods, the parties hereto agree that the purchaser grants us co-ownership in the new goods in proportion to the invoiced value of the processed, blended, integrated or commingled goods under reservation of title and keeps these goods in safekeeping for us free of charge. If the goods under reservation of title are resold regardless of without or after processing, blending, integration of commingling, the assignment in advance agreed herein shall apply only in the amount of the invoice value of the goods under reservation of title which are sold together with the other goods. The purchaser must notify us forthwith of any compulsory execution actions by third parties against the goods under reservation of title or against the claims assigned in advance, surrendering forthwith the documents necessary for intervention. 10.3 We undertake to release the security to which we are entitled in accordance with said conditions, at our discretion, on demand by the purchaser to the extent that it exceeds the value of the claims to be secured by more than 20 percent.

§ 11 Exclusion of liability Unless expressly agreed otherwise herein, we shall only be liable if we, our legal representatives or our vicarious agents act willfully or with gross negligence, or if we are culpably in breach of material contractual obligations or guarantees. Our liability shall remain unaffected in cases of death, physical injury or impairment of health as well as in accordance with the laws relating to product liability and medical preparations.

§ 12 Miscellaneous provisions 12.1 The laws of the Federal Republic of Germany shall govern all legal relations between the purchaser and us, with the exception of the UN Convention on the International Sale of Goods, the EKG, the EAG and the Hague Convention on the Purchase of Goods. 12.2 Place of performance and jurisdictional venue shall be in the courts of Bad Homburg v.d.H. 12.3 If a provision in these general terms of business or a provision in other agreements should be, or become, ineffective in law, the remaining provisions or agreements shall remain in full force and effect.

Stand: January 2013