Delivery Terms and Conditions of CCE Hanseatic Agri GmbH (November 2019)

§ 1 Scope of Application

(1) These delivery terms and conditions apply only vis-a-vis businesspeople, legal persons under public law or public law asset trusts. They do not apply to consumers.

(2) Our delivery terms and conditions exclusively apply. Contrary terms and conditions of the customer are not accepted; this applies even when we perform a delivery while aware of contrary terms and conditions of the customer. Contrary terms and conditions shall only apply if we explicitly consent to them in writing.

(3) Our delivery terms and conditions shall apply also to any future transactions between us and the customer (framework agreement).

§ 2 Concluding the Contract, Written Form, Side Agreements

(1) Our offers are freely revocable and without obligation inasmuch as they are not expressly given bindingly or if they include an explicit deadline for acceptance. Inasmuch as the order of the customer represents an offer to conclude an agreement, we are entitled to accept the same within a two-week deadline.

(2) Modifications or amendments of the contractual relationship concluded between us and the customer and/or of these delivery terms and conditions require text form for their validity (e-mail is sufficient). Oral side agreements do not apply inasmuch as it is not expressly apparent from the same that they shall continue to apply.

§ 3 Prices, Payment

(1) Our prices are ex works in Euros plus the respectively applicable statutory valid added tax and exclusive of the costs of packaging, transport and, for export deliveries, customs, fees and other public charges, insofar as nothing else has been explicitly agreed otherwise.

(2) Insofar as nothing else has been expressly agreed upon, the purchase price shall become due for net payment within 14 days from the date of invoicing.

§ 4 Offset, Retention

The customer is only entitled to offset inasmuch as its counterclaims are undisputed or have been bindingly judicially determined. The customer is only entitled to exercise rights of retention on account of counterclaims arising from the same contractual relationship.

§ 5 Quantities and Delivery

(1) Delivers are made ex works. The preconditions for delivery are that the customer has performed its obligations in a timely and proper manner. We reserve the objection of non-performance of the contract.

(2) The deadlines and timetables envisaged by us for deliveries and performance are always estimates only unless a binding deadline or a binding appointment or a binding delivery time frame has been expressly promised or agreed. Inasmuch as shipment has been agreed upon, delivery deadlines, appointment or time frames apply vis-a-vis the point of handover to the forwarder, carrier or third party otherwise engaged for transport.

(3) We may – without prejudice to other rights – request from the customer an extension of delivery or performance deadlines or a change in delivery or performance appointments by the time period in which the customer is failing to perform its contractual obligations to us.

(4) If the customer is in default of acceptance or if it otherwise is at fault for violating its duties of cooperation, we are entitled to compensation of the damages resulting therefrom, including any additional expenses. We reserve the right to make further claims. The risk of accidental loss or of accidental deterioration of the goods shall, in this case, transfer to the customer contemporaneously with the time of default of acceptance or of the violation of its duties of cooperation.

(5) We are entitled to make partial delivery if

• the partial delivery is useful to the customer in the context of the contractually defined purpose,
• the delivery of the remaining, agreed upon goods is secure and
• the customer does not suffer significant additional effort or additional costs due to this, unless we declare that we shall assume such costs.

(6) If we are in arrears or if a performance of a delivery becomes impossible, irrespective of the reason, then our liability for damages is limited pursuant to Sec. 10 of these delivery terms and conditions.

§ 6 Force Majeure

(1) We are not liable for the impossibility of the delivery or for delivery delays inasmuch as these are caused by force majeure or other events which were unforeseeable at the time of the conclusion of the contract (e.g. operational interruptions of all kinds, difficulties in obtaining materials or energy, transport delays, strikes, legal lockouts, lack of workers, energy or raw materials, difficulties in obtaining of necessary official permits, official measures or lacking) for which we are not responsible.

(2) Force majeure in the sense of the foregoing paragraph shall also include the case that we have not been supplied properly or not in a timely manner by one of our suppliers.

(3) Inasmuch as events pursuant to the two foregoing paragraphs make it significantly more difficult or impossible for us to deliver, and the obstacle is not only temporary, we are entitled to revoke the contract. For obstacles which are temporary, the delivery and performance deadlines shall be extended or the delivery or performance appointments or timeframes shall be adjusted by the timeframe of the obstacle, plus a reasonable lead time. Sec. 5 subsec. 7 applies accordingly

§ 7 Place of Performance, Shipping, Packaging, Transfer of Risk of Loss, Acceptance

(1) The place of performance for all obligations arising from all obligations out of the contractual relationship is our seat of business. The manner of shipping and the packaging are subject to our fair discretion.

(2) The risk transfers, at the latest, upon handover of the delivery item (whereby the start of the loading process shall be determinative) to the forwarder, carrier or third party otherwise engaged with the transport. This also applies if partial deliveries are being carried out or we have also agreed to perform other services. If shipping or the handover is delayed due to the circumstance, relating to the customer, then the risk transfers to the customer on the day the delivery item is ready to ship and we have notified the customer to this effect.

(3) Storage costs arising after transfer of risk of loss are to the customer’s account.

(4) The costs of transport shall be to the customer’s account. If it is agreed (e.g. via an Incoterms clause) that the costs of transport are to our account up to a certain destination provided by the customer, then the transport costs we have assumed shall also including loading costs, but only to the respectively agreed upon extent. If there are demurrage times during loading, which exceed an agreed upon scope, then such further demurrage costs shall be to the customer’s account.

(5) The consignment will only be insured by us against fire and water damage or other insurable risks upon express request by the customer and at the customer’s account, unless expressly agreed otherwise.

§ 8 Retention of Ownership

(1) Up to the complete receipt of all payments, the goods shall remain owned by us. Contractual violations on the part of the customer, including arrears in payment, entitle us to take back the goods.

(2) The customer shall properly treat and insure the goods.

(3) Inasmuch as the purchase price has not been completely paid, the customer shall notify us without undue delay and in writing of whether or not the goods are encumbered with third party rights or are subject to third party intervention.

(4) The customer is entitled to resale the goods, which are subject to retention of ownership in the regular course of business. In such a case, however, the customer hereby assign all claims arising from such resale to us, irrespective of whether the same has taken place prior to or following a possible processing of the delivered goods which are subject to retention of ownership. Without prejudice to our right to exercise the claim ourselves, the customer remains authorized to exercise the claim itself even after the assignment. In connection herewith, we shall be obligated to not exercise the claim insofar and inasmuch as the customer performs its payment obligations, no petition has been filed to open an insolvency proceeding or similar proceeding and there a cessation of payments has not been recorded.

(5) Inasmuch as the foregoing securities exceed the secured claim by more than 10%, we shall be obligated to release the securities upon the customer’s request and at our discretion.

§ 9 Warranty

(1) Warranty claims can be exercised within 12 months following the transfer of the risk of loss. The inspection and notification duties of the customer remain unaffected.

(2) If during the inspection or thereafter a defect is identified, we shall be notified of this without undue delay in writing or by e-mail. A notification shall be deemed as having been made without undue delay if it has been made, at the latest, seven days after delivery. Separate from this inspection and notification duty, the customer shall notify obvious defects (including erroneous delivery or short deliveries) within 24 hours from delivery. In any case, sending the notification in good time shall be sufficient to conform with the deadline.

(3) In case of defects relating to the goods, the customer has a right to reperformance in the form of rectification or delivery of an item free of defects. If two reperformance attempts have failed, the customer is entitled to revoke the contract or to reduce the purchase price.

§ 10 Liability

(1) In case of intent or gross negligence on our part or on the part of our representatives or vicarious agents, we shall be liable as per the statutory rules; likewise, in the event of the violation of substantive contractual duties for which we are at fault. Inasmuch as no intentional violation of the contract is given, our liability for damages is limited to the foreseeable, ordinarily arising damages.

(2) Liability for harm to life, body or health for which there is fault and liability as per the German Product Liability Law (Produkthaftungsgesetz) remain unaffected.

(3) Insofar as it has not been expressly stipulated otherwise herein, our liability is excluded.

(4) In the event that our liability is limited, the liability shall be capped at the amount of the purchase price of the relevant transaction.

§ 11 Arbitration Clause and Applicable Law

(1) All disputes which arise in connection with a contractual relationship between us and the customer or regarding the validity of the same shall be finally decided in accordance with the arbitration rules of Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS), excluding recourse to the state courts. The place of arbitration shall be Hamburg. The arbitration court can nominate a different location for carrying out the oral hearing. For disputes up to 100,000 EUR, a single arbitrator shall be engaged, above that amount the number of arbitrators shall be three. The language of the arbitration proceeding shall be German, inasmuch as the parties have not agreed otherwise. This arbitration agreement does not preclude a court, prior to or after the start of the arbitration proceeding, issuing, upon a party’s petition, an interim or protective order with respect to the subject matter of the arbitration proceedings.

(2) The applicable law is that of the Federal Republic of Germany (excluding UN CISG).

§ 12 Salvatory Clause

If a provision of these delivery terms and conditions or another provision between us and the customer and/or modifications or, as it may be, amendments made in respect of the same should be invalid or unenforceable, the validity of the contract between us and the customer, including these delivery terms and conditions and other modifications / amendments, shall not be affected. The invalid/unenforceable provision shall be deemed replaced by a valid/enforceable provision, which comes closest to the economically intended.