1. General Provisions

The following terms and conditions apply to all offers made by us or our representatives and to all orders placed with us, unless other terms have been agreed in writing. Any terms and conditions of the client that deviate from these require our express written acceptance to be legally valid. Should any of the following terms and conditions be invalid, this shall not render the entire terms and conditions invalid. Our terms and conditions apply only to business dealings with entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law.

2. Conclusion of Contract

Our quotations are subject to change. Contracts are concluded upon receipt of our written order confirmation, at the latest upon delivery of the goods.

Side agreements or amendments to the contract are only valid if confirmed by us in writing.

3. Obligation to deliver

If delivery is rendered impossible or unduly difficult by force majeure, official measures, plant shutdowns, strikes, extreme weather conditions (e.g. storms, hail, drought, high or low water) or similar circumstances – including those affecting our suppliers – we shall be released from our delivery obligation for the duration of the hindrance and its after-effects. This also entitles us to withdraw from the contract if and to the extent that it is no longer reasonable for us to adhere to the contract. In the event of non-delivery or insufficient delivery by our suppliers, we shall be released from our delivery obligations to the buyer in whole or in part. This shall apply only if we have taken the necessary steps to procure the goods to be delivered by us and have carefully selected our suppliers. In such a case, we undertake to assign our claims against the supplier to the buyer upon request. In this case, the buyer remains obliged to provide consideration in accordance with

Section 326(3) of the German Civil Code (BGB). We shall inform the buyer immediately of the occurrence of the above-mentioned events and the unavailability and, in the event of withdrawal, shall refund the buyer’s consideration without delay.

We are entitled to fulfil orders in partial deliveries, provided this is reasonable for the buyer. If delivery on call has been agreed, the buyer must place the call within a reasonable period.

4. Terms of Payment

The applicable price list or the agreed price plus VAT shall apply. Unless otherwise agreed, payment of the purchase price must be made immediately upon receipt of the invoice without deduction. Bills of exchange and cheques, which we may refuse as means of payment, shall only be deemed payment once they have been finally honoured. Bill of exchange and discount charges shall be borne by the buyer. If the purchase price due is not paid immediately following a reminder, the buyer shall pay default interest at a rate of 8 percentage points above our respective applicable base rate in accordance with Section 247 of the German Civil Code (BGB). The buyer may only raise objections to invoices within one week. Objections do not entitle the buyer to defer payment.

The buyer may only set off counterclaims that are not disputed by us or have been legally established. The buyer may not exercise a right of retention that is not based on the same legal relationship. In the event of non-compliance with the terms of payment, all our claims shall become due immediately. We are entitled to demand cash on delivery or payment in advance for our deliveries.

In the case of payment by SEPA Core or SEPA Business Direct Debit, we shall notify the buyer of a one-off SEPA direct debit and, in the case of any SEPA standing order with varying amounts, no later than one working day before the direct debit is taken. In the case of an initial SEPA standing order with fixed amounts, we shall notify the buyer of the first direct debit and subsequent debits no later than one working day before the first direct debit.

5. Retention of title

The delivered goods remain our property until the purchase price has been paid in full. This also applies to all claims that we have against the buyer arising from the business relationship with the buyer or that we may acquire against the buyer in the future. We are entitled to withdraw from the contract after setting a reasonable deadline in the event of conduct by the buyer in breach of contract, in particular if the buyer is in default of payment. If the goods subject to retention of title are inseparably mixed, blended or combined with other goods owned by the buyer or a third party, we shall acquire co-ownership of the resulting item in a proportion corresponding to the value of our goods subject to retention of title in relation to the value of the goods mixed with them at the time of mixing, blending or combining.

Through the processing or treatment of the goods subject to retention of title, we shall acquire ownership of the new item in proportion to the value of our goods subject to retention of title; the buyer shall hold these in safekeeping on our behalf.

At our request, the buyer shall insure the goods belonging to us to a reasonable extent against the usual risks at their own expense and assign the insurance claims to us. We are also entitled to pay the insurance premiums at the buyer’s expense.

The buyer is entitled to resell the goods, including goods produced by mixing, blending, combining, processing or working, only in the course of its ordinary business operations. The buyer is not authorised to dispose of these goods in any other way, in particular by pledging them or transferring them by way of security.

The buyer hereby assigns to us all claims arising from the resale of the goods subject to retention of title or the goods produced from them by processing or treatment. The same applies to other claims which take the place of the goods subject to retention of title or otherwise arise in respect of the goods subject to retention of title. The buyer hereby assigns to us a first-ranking portion of the claims arising from the sale of goods in which we have acquired co-ownership through mixing, blending or combining, corresponding to our share of co-ownership in the goods sold. If the buyer sells goods in which we hold ownership or co-ownership together with other goods not belonging to us for a total price, the buyer hereby assigns to us a first-ranking portion of this total claim corresponding to the proportion of the goods subject to retention of title.

The buyer is authorised to collect the assigned claims arising from the resale. We may revoke this authorisation to collect at any time if the buyer fails to meet their payment obligations, is in default of payment, has filed for insolvency, or if there is a suspension of payments or enforcement measures by third parties. Upon request, the buyer must name the debtors of the assigned claims, notify them of the assignment, or hand over the notices of assignment to us. Provided the buyer meets their payment obligations, we shall not disclose the assignment. If the realisable value of the securities held by us exceeds the secured claims in total by more than 10%, we shall, at the buyer’s request, be obliged to release securities of our choice to that extent.

6. Collection

Only those persons authorised by us for this purpose are entitled to accept payment.

7. Notices of defects, claims for defects

The goods must be inspected immediately upon receipt for correct quantity or weight as well as for defects. Obvious defects must be reported within 12 hours, and in the case of perishable goods (e.g. milk, yoghurt) within 6 hours of receipt of the goods. Hidden defects must be reported immediately, at the latest 6 hours after discovery.

The same applies to all other complaints. In any case, the complaint must be made before the goods are passed on to third parties. Goods subject to a complaint must be stored separately until we have inspected them. In the event of direct delivery to the buyer’s customers, the buyer shall be held responsible for any breaches of the duty to inspect and give notice of defects on their part. If the delivered goods are defective and the buyer has duly notified us of the defect, the buyer may demand a replacement delivery. If we are unable to provide a replacement delivery or if the replacement delivery fails, in particular because it is defective or is delayed beyond a reasonable period for reasons for which we are responsible, the buyer may, at their discretion, withdraw from the contract or demand a reduction in the purchase price. Further claims for defects are excluded, unless otherwise stated below. We shall be liable for claims for defects for a period of one year. This shall not apply in the cases referred to in clause 8, sentence 2. We shall only be liable for public statements, in particular advertising, which we have used for our own purposes or expressly incorporated into the contract.

In the event of supplier recourse pursuant to Sections 478, 479 of the German Civil Code (BGB), we are subject to statutory liability and the limitation period, unless otherwise specified below.

8. Overall Liability

Claims for damages by the contracting party, regardless of the legal basis, in particular due to breach of obligations arising from the contractual relationship and from tort, are excluded.

This shall not apply where liability is mandatory under law, in particular in cases

1. fraud, wilful misconduct and gross negligence,
2. injury to life, limb or health,
3. the assumption of a guarantee, e.g. regarding the existence of a particular characteristic,
4. breach of material contractual obligations,
5. liability under the Product Liability Act.

Claims for damages arising from negligent breach of essential contractual obligations are limited to foreseeable damage typical for this type of contract. Insofar as our liability is excluded or limited under clauses 7 and 8, this also applies to the personal liability of our employees, staff, representatives and vicarious agents. The above provisions do not entail a shift in the burden of proof to the detriment of the contracting party.

9. Delivery

Even where delivery has been agreed, we shall only be obliged to deliver to the customer if the technical facilities for delivery are available both at our premises and at the customer’s premises. The same applies if the costs of delivery are not covered.

If, upon delivery of the goods to the customer, the customer is not present at the unloading point at the usual time, the goods shall be left at the agreed unloading point exclusively at the recipient’s risk.

10. Risk of shipment

Shipping is always at the expense and risk of the recipient, even if the goods are to be delivered by us carriage paid. The risk passes to the buyer upon the goods being taken over by the transport vehicles. Unless the buyer issues specific instructions, we are free to choose the mode of transport. We shall take out transport insurance at the buyer’s request, to the extent desired by them and at their expense.

11. Returns

Unless otherwise agreed, delivered goods cannot be returned. If goods are nevertheless returned, such return shall not be deemed to constitute acceptance of a credit note, even if receipt of the goods is acknowledged.

12. Empties/Pallets

The items on loan provided by us to the buyer (e.g. transport containers, cans and buckets) remain our property even if a deposit has been paid. They must be returned to us by the buyer immediately after intended use in perfect condition; otherwise, we are entitled to charge the replacement costs. This also applies to pallets that are not handled via the standard exchange procedure. Disposable packaging will not be taken back.

13. Place of performance, place of jurisdiction, choice of law, exclusion of the UN Convention on Contracts for the International Sale of Goods

The place of performance for delivery and payment is Ulm (Danube), provided that the buyer is a trader, or is a legal entity under public law or a special fund under public law, or has its registered office outside the Federal Republic of Germany.

If the buyer is a merchant, or is a legal entity under public law or a special fund under public law, we may bring an action at the place of jurisdiction of the place of performance and may only be sued at that place of jurisdiction.

These terms and conditions and all legal relationships between us and the buyer shall be governed by the law of the Federal Republic of Germany.

The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

1 May 2014