General Terms and Conditions of Purchase

I. Object of contract/scope

(1) These General Terms of Delivery and Payment shall only apply towards entrepreneurs within the meaning of § 14 BGB

(2) The Terms of Purchase shall apply to all orders of Agrarfrost GmbH & Co. KG (hereinafter referred to as "AGF") insofar as not otherwise agreed in writing. Contradictory or deviating conditions of the business partner will not be recognised. A silence of AGF to conditions of the business partner to the contrary shall not represent any recognition thereof. 

    II. Delivery order

    (1) Orders of AGF are also binding for the business partner without any special explanation towards AGF, so far as he contradicts within 48 hours or the next business day after receipt the order. 

    (2) The business partner has to inform us of obvious mistakes and incompleteness in the order including the order documents for the purpose of correction or completion before acceptance; otherwise the contract will be deemed as not concluded. 

    III. Service contents

    (1) A breach of the statutory provisions and obligations, which are valid for the production and delivery of the goods or services of the business partner shall establish the breach of an essential contractual obligation. 

    (2) Should costs be incurred to AGF owing to a breach according to Point III (1) these will be passed onto the business partner unless it is not responsible for the breach. Further statutory claims for damages are unaffected hereby. 

    (3) The business partner guarantees that the prices and conditions offered for the delivered goods and services were concluded without a breach of the ban on behavioural patterns which restrict competition. Should an infringement of this ban or a participation in agreements in breach of competition be determined by a court or a cartel authority it is obliged to pay AGF flat rate damages in the amount of 5% of the purchase price in the affected period of procurement and delivery together with statutory interest unless the business partner proves towards AGF less damages (or the non-occurrence of damages). Further statutory or contractual claims of AGF shall remain unaffected hereby. AGF in particular reserves the right to prove higher damages. The flat rate damages are to be offset against this amount.

    (4) The business partner will make all information available to AGF that is necessary for the examination of the existence of claims of AGF. 

    IV. Delivery times

    (1) The contractually agreed delivery time is binding.

    (2) The business partner undertakes to inform AGF immediately in writing if circumstance occur or become recognisable to him, from which it can be derived that the agreed delivery time cannot be adhered to.

    (3) In the event of the delay in delivery AGF shall be entitled to the statutory claims. AGF is in particular entitled, after the fruitless expiry of a reasonable deadline for the service or subsequent satisfaction, to cancel the contract and to request damages instead of the service.

    (4) AGF is not obliged to accept and to pay for partial or advance deliveries. Such can be rejected at the costs and risk of the business partner or however placed in storage.

    (5) The business partner undertakes to state the order number of AGF on all shipping documents and delivery notes. If it refrains to do this then delays in the processing of the delivery are not the responsibility of AGF.

    V. Packaging

    The business partner undertakes to fulfil the requirements arising from regulations under packaging law, in particular according to the packaging regulations. The "joint declaration for the disposal and recycling of transport packaging of December 1991" shall apply to the disposal of transport packaging. The settlement can be carried out by AGF either weight- related according to the Interseroh- rates or according to the flat rate settlement amounts (0.3% of the net revenue relating to the packaged goods "Food" or 0.1% of the net revenue relating to the packaged goods "Nonfood") and is, if not otherwise agreed, to be paid to AGF in line with the list in January of the following year.

    VI. Delivery/passing of risk

    (1) The delivery has, insofar as not otherwise agreed in writing, to be carried out according to Incoterm 2010 DDP.

    (2) The business partner has to hand the goods over to AGF –insofar as not otherwise agreed in writing – by complying with the product-specific conditions at the place of destination. An unloading of goods without hand-over to AGF is not permitted. The risk of the accident loss and the accidental deterioration to the goods shall pass to AGF with the hand-over of the goods to it.

    (3) Duplicate delivery notes are to be enclosed with all deliveries of the goods to be delivered, of which one copy is determined as a receipt for the business partner.

    (4) The delivery notes may not contain any price details, but merely quantity details.

    (5) The delivery of goods, which have not been produced, processed or packed by the manufacturer itself, but by subcontractors, is only permitted with the prior written consent of AGF.

    VII. Prices/conditions

    (1) The contractually agreed price is binding. The business partner is however obliged to reduce the price if it reduces its list prices before or after the receipt of the order, however before delivery to AGF. Price increases require the explicit consent of AGF.

    (2) Agreed prices are deemed respectively including secondary costs such as freight, packaging, transport insurance, customs clearance and secondary customs costs as well as possible cartages plus the applicable rate of value added tax.
    (3) Insofar as the business partner makes product samples available to AGF, which AGF requested for test purposes or for development work on new products, these are free of charge for AGF to a reasonable extent.

    VIII. Payments/cash discount

    (1) Invoices of the managing director have to state the precise order number of AGF. The business partner shall be responsible for possible delays or additional costs incurred owing to the non-compliance with this obligation. AGF is entitled to return improper invoices and to request a proper invoicing.

    (2) The payment shall be made, if not otherwise agreed, within 30 days after receipt of the invoice under the deduction of the if applicable agreed cash discount.

    (3) Decisive for the payment deadline is the day of receipt of the invoice or with pre-issued invoices the day of the full receipt of the goods by AGF.

    (4) AGF shall be entitled to rights to offset and rights of retention in the statutory extent.


    IX. Reports of defects

    (1) AGF will report obvious defects to fresh goods immediately, with all other products within 5 days from the receipt of the full delivery by AGF.

    (2) In case of hidden defects the deadline for reporting a defect is one week from the discovery of the defect. Payments of invoices shall not have an effect as a recognition of the lack of defects to the delivered goods.
    (3) The business partner has to inspect goods for which a report is made upon request immediately, with other than fresh goods by no later than within 5 days, at its costs and with the actual existence of a defect to transport the goods away at its costs. If the goods are not picked up within this deadline AGF is entitled to store the goods at the costs and risk of the business partner or – in case of danger of spoilage – to sell or destroyed these.

    (4) AGF is entitled to the statutory claims for defects to the full extent.

    (5) AGF is also entitled, without the consent of the business partner, at its costs to remedy the defects itself if there is special urgency and the use of the business partner is not possible in time or is deemed unreasonable or after AGF has unsuccessfully set a reasonable deadline for the subsequent fulfilment unless the business partner has rightfully refused the subsequent satisfaction. § 323 Par. 2 BGB will apply accordingly to the setting of a deadline. AGF has to inform the business partner about the personal remedy of the defects.

    (6) Thelegalstatute-of-limitationregulationsshallapply.

    X. Product liability/indemnification

    (1) The business partner undertakes to indemnify us from all claims asserted by third parties owing to physical injuries (i.e. damages owing to the death or the injury to the body or the health of a person) or property damages insofar as these are due to a fault to the delivered product for which it is responsible.

    (2) Within the framework of its liability for damaging events within the meaning of Point X Subclause (1) the business partner is also obliged to reimburse possible expenses according to §§ 683, 670 BGB as well as according to §§ 830, 840, 426 BGB, which arise from or in connection with a recall action carried out AGF. AGF will inform the business partner about the contents and scope of the recall measures which are to be carried out – insofar as possible and deemed reasonable – and give it the opportunity to make a statement. This shall have no effect on other statutory claims.

    (3) The contractor has to maintain suitable liability insurance with sums insured of at least EUR 5,000,000.-- for physical injuries, property damages and financial losses, at least maximised twice p.a., in case of work to buildings, systems, etc. also for processing damages of at least EUR 100,000.--. For the first time at the beginning of the business relationship and consequently at the beginning of each calendar year the contractor has to submit an insurer’s confirmation to AGF with the following details:

    • Insured object
    • Sums insured
    • Business description
    • Possible excesses
    • Premium payment for the insurance period 

    (4) Further claims for damages of AGF shall remain unaffected.

    XI. Property rights of third parties

    (1) The business partner assumes responsibility for the fact that no property rights of third parties are infringed by the deliveries / sales products as well as property rights of third parties, e.g. with regard to the goods, their packaging or marking as well as in connection with the advertising statements made with the goods.

    (2) If a claim is asserted against AGF by a third party owing to the afore-mentioned infringement of commercial property rights of third parties the business partner undertakes to indemnify AGF from all such claims, rights and receivables of third parties against AGF unless it can prove that it is not responsible for the infringement of property rights. The indemnification shall also comprise the costs and expenses of the defence of AGF against such claims, rights and receivables of third parties.

    (3) The business partner further undertakes, in the event that a claim is asserted according to Par. (2), to support AGF with the defence against the assertion of the claim by providing all information and documents which are necessary for this purpose. AGF will reasonably take the interests of the business partner into consideration hereby.

    (4) The statute-of-limitations of the claim for indemnification of AGF against the business partner is oriented to the statutory regulations.

    (5) Incidentally, the statutory warranty and liability provisions shall remain unaffected.

    XII. Confidentiality and changes

    (1) Collateral agreements, amendments, addendums or restrictions to these conditions and the written contents of the contract require a written form. Oral collateral agreements are invalid. This shall also apply to collateral agreements, changes, addendums or restrictions to this written form clause.

    (2) If provisions of these conditions or parts thereof are or become invalid, this shall have no effect on the validity of the Terms of Purchase and the contract on the whole.

    (3) Further regulations are included in the attached „Confidentiality Agreement“.

    XIII. Place of performance/ place or jurisdiction

    (2) The place of performance and place of jurisdiction is the registered seat of AGF. AGF is however entitled to also file against the supplier at its registered seat.

    (3) German law applies; the validity of the UN Convention on Contracts for the International Sale of Goods is excluded.

    Date: 06.06.2016