General Terms and Conditions of Purchase

I. Scope

(1) These General Terms and Conditions of Delivery and Payment shall only apply to companies within the meaning of Section 14 of the BGB [Civil Code].

(2) Unless any other written agreement has been made, the Terms and Conditions of Purchase shall apply to all orders of Agrarfrost GmbH & Co. KG (hereinafter referred toas AGF). Contradictory or deviating terms and conditions of the Business Partner will not be recognised. Contrary or differing terms and conditions of the Supplier are not acknowledged. AGF’s silence with respect to contrary terms and conditions of the Contractor shall not constitute acknowledgement thereof.

II. Delivery Order

(1) An order shall be binding on the Contractor should he not contradict the order in writing within 24 hours or on the next working day following receipt.

III. Contents of Service

(1) Any breach of the statutory provisions applicable to the production and delivery of the goods or services of the Contractor, as well as of the obligations, shall substantiate breach of a material contractual obligation.

(2) Should any cost arise for AGF resulting from violation of the obligations pursuant to III (1), they will be passed on in full to the Contractor after he has been notified. Any further statutory claims for compensation for damages shall thereby remain unaffected.

(3) Irrespective of all statutory claims to which AGF is entitled upon the breach of one of the above obligations, upon request of AGF, with regard to further deliveries, the Contractor must, in advance and at its own cost, provide proof of propriety through the expert opinion of an independent expert.

(4) The Contractor guarantees that the prices and conditions offered for the delivered goods and services have been fixed without violating the prohibition on restrictive business practices. If by any court or competition authority a contravention of this prohibition or a participation in such agreements are identified, he is obliged to pay AGF lump-sum compensation at the rate of 5% of the purchase price in the affected relation and delivery time together with legal interest, unless, the business partner proves AGF a lower damage (or the non-occurrence of a damage). Further legal or contractual claims of AGF remain unaffected. The contractor will provide AGF all information needed to verify the existence of our claims.

IV. Delivery Times

(1) The delivery time stated in the order shall be binding, provided that was not contradicted like under point II (1). (2) The Contractor undertakes to immediately inform AGF in writing should circumstances occur, or become evident, from which it emerges that the agreed delivery time cannot be kept.

(3) In the event of a delay in delivery, AGF shall be entitled to the statutory claims. In particular, AGF shall be entitled, after a reasonable period for performance or subsequent performance has expired without result, to rescind the contract and demand compensation in lieu of performance.

(4) AGF shall not be obliged to accept and to pay for partial or premature deliveries. The same can be rejected or otherwise stored at the cost and risk of the Contractor. 

(5) The Contractor undertakes to state the exact AGF order number on all shipping documents and delivery notes (including EAN Code 128). AGF will not be responsible for delays in processing the shipment should the Contractor fail to do so.

V. Packaging

(1) The Contractor undertakes to fulfil the requirements arising from the current amendment of the packaging regulations. The “Joint Declaration for the Disposal and Recycling of Transport Packaging as of December 1991” shall apply to the transport packaging. The settlement can either be carried out according to weight pursuant to the Interseroh rates or pursuant to the lump sum settlement amounts (0.3% food or 0.1% non-food) and shall be paid to AGF in line with the list in January of the following year. 

VI. Delivery/Transfer of Risk

(1) Unless otherwise agreed in writing, delivery shall be made according Incoterm DDP / CIP.

(2) Unless otherwise agreed in writing, the Contractor shall be required to deliver the goods to AGF’s employees at the place of destination in compliance with the conditions specified for each product. Unloading of goods without delivery to the employees of AGF shall not be permitted. The risk of accidental destruction and accidental deterioration shall pass to AGF’s employees once the goods have been handed over to them.

(3) Delivery notes in triplicate must be enclosed with the goods on all deliveries, of which one copy will serve as a receipt for the Contractor.

(4) The delivery notes may not include any information on prices but only on quantities. The delivery of goods that are not manufactured, processed or packaged by the manufacturer himself but by a sub-supplier is only permitted subject to AGF’s prior written approval.

VII. Prices/Terms and Conditions

(1) The price shown in the order shall be binding. The Contractor shall, however, be obliged to reduce his price should he reduce his list prices before or after the receipt of the order but before the delivery to AGF. Price increases shall require AGF’s explicit consent and shall be notified to AGF in writing at least 8 weeks before entering into effect.

(2) Agreed prices will be understood as inclusive of ancillary costs such as freight, packaging, transport insurance, customs duties, customs ancillary costs and cartage and including VAT at the legally required rate.

(3) Reasonable costs incurred by AGF for the extraction of samples and/or other ancillary costs to which AGF is entitled shall be invoiced separately after consultation with the Contractor.

VIII. Payments/Cash Discount

(1) The Contractor’s invoice must correspond with AGF’s order. AGF will only process invoices that state the order number issued by AGF. The Contractor shall be responsible for any delays or additional costs resulting from a failure to comply with this requirement. AGF shall be entitled to return invoices that are not correctly prepared and to demand the issue of correct invoices.

(2) Unless otherwise agreed, payment will be made 90 days after receipt of the invoice subject to the deduction of any cash discount, where agreed.

(3) The beginning of the payment period will be governed by the date that the invoice is received or, in the case of pre-invoicing, on the date that the goods are completely received by AGF.

(4) AGF shall be entitled to set off or withhold payments to the extent permissible by law. In the event of discrepancies in the invoice and provided that AGF has not been guilty of gross negligence, payment terms for the disputed amount will be postponed until the date on which the matter is clarified.

(5) The payment period shall be fulfilled with the delivery of the means of payment determined by AGF or on the issue of instructions to the bank.

IX. Notification of Defects

(1) AGF will notify defects in fresh goods within one week and in all other products within a month AGF receiving the complete delivery. AGF shall not be required to perform immediate random tests until these periods have expired.

(2) In the case of hidden defects, the period of time permitted for the notification of defects shall be two weeks from the date of their discovery. The payment of invoices shall not imply acknowledgement of the lack of defects in the goods delivered.

(3) Upon request, the Contractor shall be required, at his own expense, to immediately pick up goods subject to complaints, at the latest within one week. Should the goods not be picked up within this period, AGF shall be entitled to store the goods at the Contractor’s risk and expense or to sell or destroy them should there be a danger of the goods perishing. 

(4) AGF shall be entitled to the full extent of claims for defects provided for in law; AGF shall in any event be entitled to demand, at its option, the remedy of the defect or subsequent performance. Claims for compensation by AGF shall remain unaffected. 

(5) AGF shall be entitled, after consulting with the Contractor, to remedy the problem itself at the Contractor’s expense, should a situation of danger in delay or of particular urgency exist.

(6) The period of limitation shall be 36 months, calculated from the date that risk is transferred.

X. Product Liability/Indemnification

(1) The Business Partner shall be liable for all violations of the above obligations as well as for all costs and damage incurred through violations of postal, rail traffic and highway code regulations.

(2) Should the Business Partner be responsible for any product damage, he undertakes to indemnify and hold AGF harmless from all claims of third parties upon first request. 

(3) As part of his liability for claims as defined in 10. (1), the Contractor shall also be required to refund any expenses pursuant to ss. 683, 670 as well as ss. 830, 840, 426 of the BGB [German Civil Code] arising from or in connection with a recall action carried out by AGF. AGF will, to the extent that that is possible and reasonable, inform the Contractor of the nature and scope of the recall measures to be carried out and give him the opportunity to state its opinion. Any other claims in law shall remain hereby unaffected.

(4) The Contractor undertakes to maintain product liability insurance with an amount covered – lump sum - of €10,000,000 per claim for damage to persons or property; this shall not affect any additional claims to which AGF is entitled.

(5) Should the product fall into public disrepute without the cause for this being the fault of AGF, it may - even should no error have been made in legal terms – at any time wholly or in part rescind the contract and/or the delivery concerned or return to the Contractor on a step by step basis each product that has fallen into disrepute against reimbursement of the purchase price as well as any other expenses incurred by AGF.

XI. Third Party Proprietary Rights

(1) Herewith the Contractor guarantees in the way of an independent guarantee promise, that by the deliveries / sales products no protective rights of third parties, e. g. in view of the goods, packaging or labelling as well as in connection with advertising statements of the goods, are injured.

(2) If AGF is taken by a third party claim, the Contractor is obligated upon first written demand to indemnify AGF from all claims, rights and requirements of third parties, which have their basis in sales and/or products. This exemption applies in particular for the case that the guarantee of the Contractor in paragraph (1) should be violated. The exemption also includes the costs and expenses of defending AGF against such claims, rights and requirements of third parties.

(3) The Contractor further agrees to assist AGF in case of a claim under paragraph (2) by providing all required information and documents for a defense of the claim by providing all required information and documents for a defense of the claim. 

(4) The period of limitation for the right of exemption of AGF towards the Contractor amounts 3 years upon use by the third party. 

(5) Should AGF be prevented from selling the goods as a consequence of the assertion of third party claims, the Contractor shall be obliged to take such goods back and to refund the purchase price paid. This will not affect additional claims of AGF, such as compensation for damages caused by failures to keep firm delivery agreements made with its customers.

XII. Non-disclosure and Alterations

(1) Ancillary agreements, alterations, supplements or restrictions to these terms and conditions and the written contents of the contract shall only be valid subject to prior written confirmation by AGF. Oral ancillary agreements shall be invalid. 

(2) Should any provisions of these Terms and Conditions, or parts thereof, be or become invalid, the validity of the Terms and Conditions of Purchase and the contract as a whole shall remained unaffected. On the contrary, an invalid provision shall be replaced by a valid provision that achieves the commercial goal to the greatest extent possible.

(3) Should a change to the Contractor’s shareholders occur and should this give AGF an objective reason not to wish to continue the contract, AGF will have the right to terminate the contract with immediate effect “for cause”.

(4) AGF shall reserve the property rights and copyrights to diagrams, drawings, recipes, calculations and other documents as well as aids and appliances, which AGF submits to the Business Partner for the performance of orders; third parties may not be granted access to the same without the express written approval of AGF. They shall exclusively be used for manufacturing on the basis of the order; after processing of the order they shall be returned to AGF automatically. They shall not be disclosed to third parties. This non-disclosure obligation shall also survive the end of this contract; it shall lapse if and to the extent that the manufacturing know-how contained in the diagrams, drawings, recipes, calculations and other documents provided has entered into the public domain.

XIII. Place of Performance/ Legal Venue

(1) The place of performance and legal venue shall be the registered offices of AGF. AGF shall, however, be entitled to also file an action against the Supplier at the court of jurisdiction of his place of residence. 

(2) German law shall apply; the validity of the United Nations Convention on Contracts for the International Sale of Goods shall be excluded.