General Terms and Conditions applicable to business customers

Gräfe Chemie GmbH
21077 Hamburg, Germany

§ 1

General – Scope of the contract

1. These General Terms and Conditions apply exclusively to companies, legal entities under public law and special assets under public law as set out in § 310 para. 1 BGB (German Civil Code).
2. These General Terms and Conditions are an integral part of all supply contracts, agreements and offers. They shall be deemed accepted by placing the order or accepting the delivery at the latest.
3. We expressly object to the purchaser’s general terms and conditions in any way that they may deviate from, contradict or supplement our general terms and conditions. Even if we take note of these other conditions, they will not become part of the contract unless we expressly agree to their validity in writing.
4. These General Terms and Conditions shall also apply to all future transactions with the purchaser.

§ 2

Contract formation, availability of supplies and raw materials

1. All our offers are non-binding and subject to change.
2. By placing an order, the purchaser bindingly declares himself willing to purchase these products.
3. A contract is only concluded when we accept the purchaser’s order in writing (e.g. by letter or e-mail) or deliver the products to the purchaser. The confirmation of receipt only acknowledges that the order of the purchaser has been received and shall not be deemed an acceptance of the order.
4. If we do not accept an order within 14 days or have not made the delivery, the purchaser is no longer bound to his order.
5. Additional provisions shall only be effective if we confirm them in text form.
6. If we ourselves are dependent on the delivery of supplies or raw materials (e.g. potato starch) for the fulfilment of a contract and this delivery is not fulfilled, although we have placed congruent orders with reliable suppliers, we shall be released from our obligation to perform and may withdraw from the contract. We are obliged to inform the purchaser immediately of the non-availability of the service and will immediately refund any consideration already rendered by the purchaser.

§ 3

Prices, packaging and transport costs, subsequent price adjustment

1. All prices are stated in Euro. All prices are exclusive of the respectively valid value added tax (VAT).
2. Delivery is ex works (56410 Montabaur, Germany) in accordance with the International Commercial Terms (Incoterms 2018). Unless otherwise stated, prices are therefore ex works and do not include packaging and transport costs or costs for other additional charges (customs, insurance, etc.). Such additional costs and ancillary charges shall be invoiced separately (cf. § 6 of these General Terms and Conditions: Transfer of Risk, default of acceptance, transport insurance).
3. Unless the invoice is issued in the respective currency, foreign means of payment shall be converted into euros at the official selling rate of the respective currency quoted at the Deutsche Bundesbank on the day of invoicing.
4. If the agreed delivery date is within a period of more than three months after the conclusion of the contract, we are entitled to pass on price increases for material costs (in particular for potato starches) of up to 5% of the net price to the purchaser. Such a price adjustment of up to 5% does not entitle the purchaser to withdraw from the contract. We are not entitled to such a price adjustment if the delivery period is extended to more than three months after the conclusion of the contract for reasons for which we are responsible.

§ 4

Delivery dates, temporary and permanent obstacles to performance and/or delivery

1. Delivery dates and delivery periods are only binding for us if we have confirmed them in writing to the purchaser.
2. In the event that the parties agreed to a non-binding delivery period from the conclusion of the contract and that this non-binding delivery date has been exceeded by two weeks, the purchaser is entitled to send us a written notice (by post or by e-mail) that the delivery must be made within a reasonable period. A delivery default shall only occur if we are unable to deliver after this set period expires.
3. We are entitled to make partial deliveries and services, provided that these do not contradict the justified interests of the purchaser.
4. In the event of weather catastrophes, such as drought, frost or hail or other unforeseen circumstances beyond our control, such as terrorist attacks, epidemics, strikes, lockouts, war or warlike events, the delivery period shall be extended for the duration of the circumstances. Strikes and lockouts in our own operations are not covered by the above clause. If the impediment to performance does not exist only temporarily, we shall be released from our obligation to deliver if

 

• delivery becomes impossible due to the mentioned circumstances (cf. § 275 para. 1 BGB).
• the service or delivery requires an expense for us, which is grossly disproportionate to the purchaser’s interest in performance, considering the content of the contractual obligation and the imperatives of good faith. In determining the reasonable efforts to be expected of us, it must also be considered whether we are responsible for the impediment to performance.
• we have to provide the service or delivery personally and it cannot be reasonably expected of us considering the obstacle to our performance in relation to the purchaser’s interest in performance.

5. If the hindrance according to § 4 para. 4 lasts longer than 3 months, the purchaser is entitled to withdraw from the part of the contract that is not yet fulfilled after setting a reasonable grace period. Claims for damages by the purchaser in the event of any of the delays or impossibility of delivery mentioned under § 4 para. 4 are excluded unless we are responsible for the delay or impossibility.

§ 5

International shipping

1. If the order is to be shipped abroad, the purchaser is obliged to inform us of the respective legal safety regulations and provisions in the shipping country in connection with the delivery of the products prior to the conclusion of the contract and delivery. Furthermore, the purchaser must ensure that the order and the delivery are made in accordance with the legal regulations of the countries concerned and, in particular, that no import restrictions are violated. Any associated additional costs shall be borne solely by the purchaser.
2. If the order is to be shipped abroad, the purchaser must ensure that any necessary official and/or private-law permits have been obtained. Any associated additional costs shall be borne solely by the purchaser.

§ 6

Transfer of risk, default of acceptance, transport insurance

1. If the order is dispatched at the purchaser’s request, the purchaser bears the risk of accidental loss and accidental deterioration from the moment the order is passed to the freight forwarder, the carrier or any other person or institution responsible for the shipping. This shall apply regardless of which party bears the transport or shipping costs.
2. Delivery shall be deemed effective, where the purchaser is in default of acceptance or delivery is delayed at the purchaser’s request despite the readiness for dispatch.
3. Transport insurance shall only be concluded at the purchaser’s express request.
4. If the purchaser is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to claim compensation for the damage incurred to us in this respect, including any additional expenses, such as storage, repeated transport or other.

§ 7

Terms of payment, default interest, defence of uncertainty

1. The invoices are due for payment immediately after receipt of the products.
2. A payment default shall occur after a period of 30 days after receipt of the invoice and after receipt of the products. The purchaser shall not be in default as long as the service is not rendered due to a circumstance for which the purchaser is not responsible. In the event of payment default, we are entitled to a default interest of 9 % above the respective base interest rate of the ECB.
3. If, after the conclusion of the contract, it should become apparent that our claim to payment is endangered by the purchaser’s inability to pay, we shall be entitled to refuse the performance and/or delivery incumbent on us. This right to refuse performance shall lapse if the purchaser effects payment or provides security for it. We are entitled to determine a reasonable period within which the purchaser must make the payment or provide the security. After unsuccessful expiry of this period, we are entitled to withdraw from the contract.

§ 8

Prohibition of set-off, limitation of the right of retention

1. The purchaser is only entitled to off-setting rights if his counterclaims are legally established, ready for decision, undisputed or acknowledged by us.
2. The purchaser is only entitled to exercise his right of retention insofar as his counterclaim is based on the same contractual relationship.

§ 9

Retention of title

1. We reserve the right to retention of title to the products until all claims are fully settled, that may arise from an ongoing business relationship including ancillary claims. The retention of title shall also remain if individual claims are included in a current invoice and the balance has been struck and acknowledged.
2. The purchaser is obliged to treat the products, which are subject to the retention of title, with care at his own expense. In particular, the purchaser is obliged to take out insurance for the products, which are subject to the retention of title, against any insurable damage (in particular against fire, water, storm, theft and liability damages, etc.) at his own expense. Furthermore, the purchaser must ensure, that the insured sum is adequate to cover the replacement value sufficiently.
3. The purchaser is obliged to inform us immediately if a third-party has access to the products, for example in the event of seizure or should the products be in any way damaged or destroyed. In the event of seizure, we must also be informed of the name and address of the seizure creditor. Furthermore, the purchaser must notify us immediately of any change in ownership of the products or any change of his address.
4. We shall be entitled to withdraw from the contract and demand the return of the products should the purchaser breach the provisions of the contract, in particular in the event of default payment or breach of an obligation pursuant to Section 2 of this provision.
5. The purchaser is entitled to process and re-sell the products in usual business transactions. The purchaser is not entitled to make any other dispositions, in particular pledges or the granting of ownership by way of security. If the products, which are subject to the retention of title, are not paid for immediately by the third-party purchaser upon resale, the purchaser is obliged to re-sell only under the retention of title. The right to re-sell the products, which are subject to the retention of title, shall cease without further ado if the purchaser ceases payment or is in default of payment to us.
6. The purchaser hereby assigns all claims to us, including securities and ancillary rights, which accrue to him from or in connection with the resale of products, which are subject to the retention of title, to the end purchaser or third-parties. Herewith, we accept the assignment. The purchaser may not make any agreements with his purchasers that exclude or impair our rights in any way or nullify the assignment of future claims. In the event that products, which are subject to the retention of title, are sold together with other items, the claim against the third-party buyer shall be deemed assigned in the amount of the delivery price agreed between us and the purchaser, unless the amounts attributable to the individual products can be determined from the invoice.
7. The purchaser remains entitled to collect the claim assigned to us until our revocation, which is permissible at any time. At our request, the purchaser is obliged to provide us with the information and documents required to collect the assigned claims and, if we do not do so ourselves, to inform his purchasers immediately of the assignment to us.
8. If the value of the securities existing for us in accordance with the above provisions exceeds the secured claims by more than 10% in total, we are obliged to release securities of our choice at the purchaser’s request.
9. Treatment or processing, mixing and/or combination of the products, which are subject to the retention of title, shall take place for us within the scope of § 950 BGB (German Civil Code), however, without obliging us. If the products, which are subject to the retention of title, are processed, mixed or inseparably combined with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the invoice value of our products to the invoice values of the other processed or combined items. If our products are mixed or combined with other movable objects to form a single object, which is to be regarded as the main object, the purchaser hereby assigns co-ownership thereof to us in the same proportion. The purchaser shall keep the property or co-ownership in safe custody for us free of charge. The co-ownership rights arising from this shall be deemed to be reserved products. Upon our request, the purchaser is obliged at any time to provide us with the information necessary to pursue our ownership or co-ownership rights.

§ 10

Warranty for material deficiencies, notification of obvious defects, limitation period

1. In the event of a defect, we shall be entitled to supplementary performance at our own discretion, either in the form of a remedy of the defect or a replacement delivery (delivery of a defect-free item).
2. If supplementary performance fails, the purchaser may, at his own discretion, either demand a reduction of the remuneration (reduction) or rescission of the contract (withdrawal). In the event of only a minor breach of duty, in particular in the event of only minor defects, however, the purchaser shall not be entitled to withdraw from the contract.
3. The purchaser is also entitled to withdraw from the contract in the following cases:

 

• if we have refused a certain type of supplementary performance due to disproportionately high costs,
• if the supplementary performance carried by us is unreasonable for the purchaser,
• if we have not performed a service on a date specified in the contract or within a period specified in the contract (so-called firm deal), although we have learned before conclusion of the contract by notification of the purchaser or due to other circumstances accompanying the conclusion of the contract, that the punctual or timely performance is essential for the purchaser,
• if we have seriously and definitively refused supplementary performance or
• in the case, that a service is not provided by our company in accordance with the contract, there are special circumstances which justify the immediate withdrawal by the purchaser, considering the interests of both parties.

 

4. In order to exercise warranty rights, the purchaser must comply with the provisions, regarding inspection and notification of defects, as laid out under § 377 HGB (German Commercial Code). The quantity or number of products delivered must be checked immediately upon receipt. Shortages and other obvious defects must be notified to us in writing (in text form) within a period of one week after receipt of the products, otherwise the assertion of the warranty claim is excluded in this respect. Defects which cannot be detected within this period after careful examination must be reported to us immediately in text form after their detection. This does not apply if we have fraudulently concealed the defect. The timely dispatch of the notice of defects shall suffice to comply with the time period.
5. Unless otherwise specified in this section with regard to obvious defects, the limitation period for warranty claims for material defects shall be one year from delivery of the products.

§ 11

Disclaimer and limitation of liability

1. In the event of breaches of duty by us, our liability is limited to intent and gross negligence. These limitations of liability also apply to breaches of duty by our legal representatives and/or our vicarious agents.
2. The limitations and exclusions of liability in paragraph 1 of this section do not apply:

 

• in the event of damage resulting from injury to life, body or health (personal injury) for which we or our vicarious agents are responsible,
• in the event of default by us, insofar as a fixed delivery date has been agreed,
• in the event of an assumption of a guarantee for the condition of our products, performance-related success or procurement risk,
• for claims under the Product Liability Act,
• in the event of breach of cardinal obligations (essential contractual obligations). This includes damages which we cause by a simple negligent breach of such contractual obligations, the performance of which is essential for the proper performance of the contract and on whose compliance the purchaser regularly relies and may rely.

 

3. As far as no case according to paragraph 2 of this section exists, our and our vicarious agent’s liability for slightly negligent breaches of duty is limited to the amount of the foreseeable and contract-typical damage. We are therefore not liable for damages which we did not have to foresee when the contract was concluded as a possible consequence of the breach of contract. We shall also not be liable for damage which has not occurred to the delivery item itself; in particular, we shall not be liable for loss of profit.

§ 12

Non-disclosure agreement

The purchaser is obliged to treat all information and documents he received in the context of the business relationship with us, such as prices, delivery conditions, technical know-how, confidentially and not to pass them on to third parties.

§ 13

Applicable law

The law of the Federal Republic of Germany applies to the entire legal relationship with the purchasers and these General Terms and Conditions. The provisions of the UN Convention on Contracts for the International Sale of Products shall not apply. However, the International Commercial Terms (Incoterms 2018) shall also apply, unless otherwise provided for in these General Terms and Conditions or in the respective contract with the purchaser.

§ 14

Court of jurisdiction, place of fulfilment, severability clause

1. The place of jurisdiction for all disputes arising from this contract and the business relations with the purchaser is the registered office of our company. The same applies if the purchaser has no general place of jurisdiction in Germany or his place of residence or usual domicile is not known at the time the action is filed. In all other respects, the statutory provisions shall apply.
2. Place of performance is also the registered office of our company.
3. Should individual provisions of the contract with the purchaser, including these General Terms and Conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.