Terms and Conditions

Terms and Conditions of Sale and Delivery

– Standing: 2012 –

§ 1 – General information

Only the following Terms and Conditions of Sale and Delivery shall apply to all (including future) deliveries and performance, even if this is not expressly pointed out upon future business transactions. Any contradictory or differing terms or other restrictions of the buyer's shall not be accepted, unless we have expressly approved them in writing in individual cases.

§ 2 – Subject matter of the contract

1. Unless something else is expressly agreed in individual cases, the supplier's advice relevant to application given verbally, in writing or through testing shall be carried out to the best of its knowledge but shall only be considered as non-binding information and shall not relieve buyers from carrying out their own testing of products supplied for their suitability as well as for the processes and purposes for which they are intended.

The application, use and processing of the products shall be carried out beyond the supplier's possibilities of control and thus shall be exclusively within the buyer's sphere of responsibility.

2. Only the qualities described in the supplier's technical specification sheets, product descriptions, specifications and other labelling shall be considered as the products' qualities.

These documents shall either come with the respective deliveries or shall be sent to the buyer on request.

Note that the information in the technical specification sheets, product descriptions, specifications and other labelling is only descriptive information. No guarantee shall be assumed.

Any public statements, recommendations or advertising shall not constitute any quality specification for products supplied.

3. Our products must be stored in a cool and frost-free location. Unless something else has been expressly agreed in individual cases, our products are stable in storage for six months when properly stored.

If not properly stored and after the six-month period of storage stability, the products are no longer suited for unlimited processing.

4. Any agreement on properties or intended uses of the products differing from the specifications in the technical specification sheets, product descriptions, specifications and other labelling shall require express confirmation by the supplier.

5. The supplier reserves the right to change sizes or unit weights if this is necessary for reasons concerning production or raw material supplies and such changes are reasonable for the buyer.

§ 3 – Payments

1. Buyers shall only be entitled to set off counterclaims if such have been accepted or deemed legally effective.

2. If the supplier should become aware of any circumstances giving cause for grave doubts about either the buyer's ability to pay or its creditworthiness, then, irrespective of the agreed time allowed for payment, the supplier shall be entitled to make all outstanding invoice amounts immediately due and payable (including any for which the term of payment has been extended) and to make any further supplying to the buyer dependent on advance payments or worthy provision of security.

§ 4 – Reservation of ownership

1. The merchandise shall remain the supplier's property until full payment has been made of (also future) receivables arising from the business relation, including any accessories claims and claims for damages.

2. The reservation of ownership shall also continue to exist if any individual claims by the supplier are taken into a current invoice and the balance is drawn and accepted.

3. If the buyer processes any reserved merchandise into a new moveable article, then the processing shall be carried out for the supplier, without it being obligated as a result. The new article shall become the supplier's property. If any processing, mixing or blending is carried out with merchandise not belonging to the supplier, then the supplier shall acquire co-ownership of the new article according to the ratio of the invoice value of its reserved merchandise to the total value.

4. Buyers shall only be entitled to resell or process reserved merchandise allowing for the provisions below and only provided that the claims in accordance with the provisions of Clause 6 below are actually passed to the supplier.

5. A buyer's authorisations to sell or process reserved merchandise in proper business transactions shall end upon revocation by the supplier resulting from any sustained worsening of the buyer's financial situation, this occurring, however, at the latest if and when it suspends payments or applies for insolvency proceedings to be opened on its assets.

6. a) Buyers hereby transfer to the supplier their claims along with all ancillary rights arising from the resale of reserved merchandise (also after processing), including any balances due.

b) If the merchandise has been processed, mixed or blended, and if the supplier has obtained co-ownership to this amounting to its invoice value, then it shall be entitled to the claim for the purchase price transferred proportionate to the invoice value of the reserved merchandise.

If a buyer acquires any claims to wages vis-à-vis a third party arising from the processing of reserved merchandise, then already now it assigns these along with all ancillary rights to the supplier in the amount of the invoice value of the reserved merchandise.

c) If the buyer has sold the claim within the scope of non-recourse factoring, then the supplier's claim shall become immediately due, and the buyer shall transfer to the supplier the claim taking its place for the factor and shall pass on its sale proceeds to the supplier without delay.

d) The supplier accepts the foregoing assignments.

7. As long as it fulfils its payment obligations, the buyer shall be authorised to collect assigned claims. This authorisation to collect shall expire upon revocation, this occurring at the latest, however, when and if the buyer defaults on payments or in case of any substantial worsening of the buyer's financial circumstances. In such case, the buyer hereby authorises the supplier to inform the customers about the assignment and to collect the receivables itself.

8. Should the value of the securities available to the supplier exceed its total claims by more than 20%, then, on demand by the buyer or a third party negatively affected by the supplier's excess security, the supplier shall be under obligation to release to this extent the securities of its choice.

9. No pledging or collateral assignment shall be allowed of the reserved merchandise and/or the claims transferred. The supplier must be immediately notified about any pledging, indicating the pledge.

10. The supplier may pay itself off through direct sales from reserved merchandise taken back.

§ 5 – Time limit for deliveries

Agreed time limits for delivery shall automatically be extended by the duration of any instances of force majeure, turmoil, strikes, lock-outs, unforeseen scarcity of raw materials, absence of correct or punctual self-supply or interruptions of operations through no fault of one's own.

§ 6 – Requirements to give notice of defects

Buyers shall be under obligation to give immediate written notice of: any obvious defects, deliveries of different articles or deliveries of too small amounts, doing so seven days at the latest after the merchandise is received at its destination. Written notice must be given of any concealed defects immediately after the defect is discovered.

§ 7 – Material defects/Deficient quantities

The supplier shall be liable for material defects as follows:

1. If the supplier is obligated to deliver according to the buyer's recipes, specifications, samples, etc, the buyer shall bear the risk for the suitability for the intended use. The time point of the passing of the risk shall be decisive for the condition of the merchandise as stipulated in the contract.

2. In case of material defects, delivery of a different article or delivery of a deficient quantity, the supplier shall, under the statutory preconditions and to the statutory extent, be liable for subsequent performance, reduction, conversion and reimbursement of expenses.

3. If the statutory preconditions are fulfilled, the supplier shall also be liable for damages instead of performance. In case of a merely negligent breach of duty by the supplier or its vicarious agents, a claim to damages instead of performance shall be limited to the foreseeable damage according to the contract.

4. If other claims to damages (than damages instead of performance) are valid, the supplier shall be liable in accordance with the provisions of § 8 of these conditions.

5. Material defects claims shall become statute-barred in twelve months as of the passing of risk.

The legally prescribed longer time limits shall apply if the preconditions are fulfilled in accordance with: § 438, Para. 1, No. 2 of the German Civil Code (constructions and things which, according to their usual manner of use, have usually been used for a construction), § 479, Para. 1 of the German Civil Code (right of recourse when purchasing consumer goods) or of § 634a, Para. 1, No. 2 of the German Civil Code (constructional defects).

6. Any further-reaching or different claims by buyers against the supplier or its vicarious agents due to material defects shall be ruled out.

§ 8 – Other claims for damages

1. We shall be liable according to the statutory preconditions and to the statutory extent:
– for all injuries to life, body and health, and:
– in accordance with the Product Liability Act, and:
– in case of wilful deceit, in particular fraudulently concealing material defects, and:
– for the assumption of a guarantee for the quality of an article, and:
– in case of causing damage deliberately or through gross negligence, also by vicarious agents.

2. We shall be liable in accordance with the statutory preconditions:
– if we have expressly or conclusively assumed a qualified position of trust in regard to avoiding damage that has occurred, and:
– if and to the extent that exemption from liability or restriction of liability would differ from substantial fundamental legal ideas in incompatible fashion, and:
– if and to the extent that a breach of duty is so substantial that it would result in jeopardising the attainment of the purpose of the contractual obligation.

In these cases, our liability shall be limited to foreseeable damage typical to this type of contract.

3. If damage occurs as a result of simple negligence, without there being any case as per Clauses 1 or 2, which is not the result of delay or impossibility, then any claims for damages due to a breach of duty or claims for damages due to neglecting the duty to take into account the buyer's interests, rights and objects of legal protection shall be ruled out. In such case, we shall also not be liable for damages instead of performance or compensation for futile expenditures if there is less than gross negligence. If it is a matter of claims for damages instead of performance or reimbursement of expenses due to material defects, it shall, however, remain as liability arising from § 7, Clauses 2 and 3 of these conditions.

§ 9 – Place of performance and legal venue

The place of performance for all performance shall be the location of the supplier's headquarters. The legal venue for both parties shall be Hanover if the buyer is a businessperson.

§ 10 – Applicable law

German substantive law shall apply to the contractual relationships, ruling out the United Nations Convention on the International Sale of Goods (CISG).

§ 11 – Concluding provisions

Even if any of their individual points should be legally ineffective, the remaining parts of these Terms and Conditions of Sale and Delivery shall remain binding.

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