AGB

I. General provisions


1.For all kinds of deliveries of goods and provisions of services to the customer our general terms and conditions shall apply exclusively unless something different has been agreed in writing and acknowledged by us in writing. In particular, our terms and conditions take priority over any conflicting terms of the customer even without or express objection. Our general terms and conditions also apply to all future business relations even if they are not again expressly agreed. 
 
2.If discrepancies in the contract arise, in particular with regard to its content and extent, thefollowing shall apply one after the other: 
a) our acknowledgments of order, delivery notes or any other letters of confirmation,
b) our pro forma invoices issued in the export business, 
c)the distribution agreement with the customer, 
d) these general terms and conditions,
e) the law of the Federal Republic of Germany.
 
3.Deviations from the contents of the written acknowledgments of order, delivery notes, other letters of confirmation, pro forma invoices and the distribution agreement require our written confirmation even if they are based on arrangements with our sales representatives or other field personnel. The customer acknowledges that our sales representatives and other field personnel are not authorized to conclude transactions on behalf of us, including the acceptance of money or any other means of payment. 
 
4.Our acknowledgments of order, delivery notes, other letters of confirmation, or pro forma invoices are accepted by the customer with regard to their contents unless he objects to them inwriting immediately, however, no later than four workdays after their receipt. 
 
5.We reserve the right to technically improve and to change the ingredients of our products regarding form, formulas, materials or equipment. However, we affirm that the products delivered to the customer have been developed according to the applicable laws and regulations of the Federal Republic of Germany and according to the regulations and provisions of the European Union ratified in the Federal Republic of Germany, unless we manufacture products based on a customer specimen of formula, or any other instruction by the customer.
 
6.The customer is obliged to verify on his own responsibility and at his own expense whether ourgoods and services conform with the respective national legal provisions applicable in the area of distribution before such goods or services are ordered, sold or marketed. If the verification shows that the sales or marketing of our goods and services is inadmissible or if legitimate doubts exist regarding the admissibility, the customer is not entitled to sell, pass on or market such goods and services. He must immediately notify us, enclosing the legal provisions or official directives conflicting with our goods and services. In so far the existence of a deficiency in our goods or services is excluded. 
 
7.We reserve all industrial property rights and copyrights and title to all goods, services, formulas, specimen, designs and any other business documents provided by us. Without our prior written consent the customer may not manufacture these items or documents or have them manufactured by a third party. 
 
If we provide goods or services, which have been produced pursuant to a customer specimen or formula, or any other instruction by the customer, the customer is liable for the fact that industrial property rights, copyrights or other rights of any third party are not violated by the manufacturing and delivery of such goods or services. In so far as we are held liable for such violations by third parties, the customer must indemnify us for all losses in connection with this. A corresponding liability for damages on the part of the customer exists if our goods or services do not correspond to the applicable nation legal provision in the area of distribution regarding kind, contents, packaging or any other aspect and if we incur damages resulting from this. 


II. Delivery time


1.Delivery dates and times are only binding for us if they have been agreed with the customer andif they have been confirmed by us in writing. They always begin to run ex works, but only after technical matters have been settled, and documents, approvals, partial payments etc. to be provided by the customer have been received. They end when the products are made ready for shipment or when they are shipped. Exceeding the time limit for up to two weeks has no legal consequences. 
 
2.Even if delivery times and periods have been agreed with binding force, we are not responsible for any failure to deliver goods or provide services due to acts of god or events which make it significantly more difficult or impossible for us to deliver – including but not limited to strike, lockout, operational breakdown, shortages of raw materials or operation resources, delayedsupply or no supply by suppliers, additional or changed services required by the customer or unforeseeable production difficulties or bottlenecks. These events entitle us to postpone the delivery of goods or provision of services for the period of impediment plus an appropriate starting period or to completely or partially withdraw from the contract with regard to the as yet unfulfilled part. 
 
3.Our obligation to deliver shall rest as long as the seller is in default regarding an obligation arising from the business relation. 
 
III. Passing of the risk, shipment


1.Unless otherwise agreed for specific cases, our deliveries are made uninsured and at the customer’s risk. We may choose the means of transportation in our fair judgement. 
 
2.The risk passes to the customer as soon as the delivery leaves our works, insurance and shipment expenses are borne by the customer. We are not liable for damages in transit even if they are caused by our own means of transportation. 
 
3.Partial deliveries of goods and partial provisions of services on our part are admissible. In cases of call orders the entire amount must be called off within six months unless otherwise agreed for specific cases. The customer is not entitled to return the goods without our prior written consent. 
 
IV. Prices and payments, withdrawal


1.Unless otherwise agreed, our prices are ex works. The same applies to the additional expense for insurances or shipments which the customer has to reimburse us. 
 
2.Unless otherwise agreed, our invoices are payable without discount upon delivery. We will accept payments by bills of exchange or cheques only on account of performance and only in particular cases after our prior consent. 
 
If the period of payment is exceeded, and subject to the assertion of any further claim, we are entitled to charge default interest at a rate that is 3 % higher than the applicable discount rate of the Deutsch Bundesbank. 
3.Agreed discounts, rebates or other allowances are only granted the customer if, in cases of call orders, the entire amount has been called off within the agreed call period. 
 
4.If doubts exist regarding the customer’s credit standing, we may demand payment in advance, cash payment, provision of security or cancellation, even during the duration of a call order. This applies particularly if composition or bankruptcy proceedings have been opened for the customer’s assets or if the customer or his company are summoned or have been summoned two swear an oath of disclosure. 
 
5.Only uncontested claims or claims which have become res judicata entitle the customer to setoffor retention. 
 
6.Unless otherwise agreed, the customer is not entitled to withdraw from the contract, even if the resale or marketing of our goods and services is inadmissible pursuant to item I.6 or for other imperative legal reasons.

7.If our faultless goods and services are returned as agreed, the customer, in the absence of deviating agreements, is obliged to pay a compensation amounting to 20 % of the invoiced amount without discounts and allowances. Goods and services are returned at the customer’s risk an expense. 
 
V. Safeguard/Security


1.The sold goods remain our property until all our 
present and future claims arising from the 
business relation with the customer have been 
fully settled. 
 
2.The customer may only combine or mix such delivered goods which are subject to a retention of title with other items of such other items are not subject to third party rights. 
 
3.The customer may sell the retention goods in the ordinary course of business if his claims arising from the sale have not previously been assigned, attached or otherwise encumbered. In order to provide security for our claim the customer in advance assigns to us all claims arising from the sale of the goods or the newly created goods in case the goods are processed or mixed, suchassignment being made in the amount of our claim. 
 
This authorization is revocable. 
If the customer by way of factoring sells goods for which we retain title, he may do so only ifthe factor has been notified and informed of the assignment of future claims and if our delivery invoice has been directly paid by the factor. 
4.The customer undertakes to point out our retention rights to creditors levying execution and toinform us immediately. 
 
5.If the customer is in default of a claim all our claims become due immediately. We are entitled to pick up our retention goods at the customer or at their current location. If the customer delays payment, his right to process the retention goods or to combine them with other goods and his right to collect assigned claims and to sell retention goods to third parties shall cease to exist. 
 
6.If the value of security exceeds our claims by more than 20 %, we will, at our discretion, release security accordingly upon the customer’s request. 
 
VI. Warranty


1.Only those warranted qualities which are indicated expressly and in writing to the customer are binding. Statements in promotional literature and reference to general or specific standards do not constitute quality warranties. If the customer needs the goods for a specific purpose, he must verify before ordering whether the goods are suited for this specific purpose – also with regard to product safety – and whether they comply with all applicable or planned relevant legal, official, technical provisions or with provisions necessary for marketing the goods or any other provision and standard. If the customer markets goods which do not comply with the applicable legal or official provisions and if the customer could or should have noticed this through prior verification, we are not liable for damages which can be avoided by proper, prior verification. 
 
2.The customer has to inspect the delivered goods immediately upon receipt. He must immediately, but no later than one week after receipt or discovery give notice of apparent and hidden defects. The customer loses his claim for warranty or replacement with regard to missing warranted characteristics if he does not immediately upon receipt or, at the latest, before processing, consuming, using, installing or reselling the delivered goods inspect them – also with regard to product safety – and if he does not notify us of the complains in writing within one week. After expiry of these periods or no later than six months after delivery all claims for warranty or damages due to apparent or hidden defects shall be excluded. The above provision shall apply to warranted characteristics accordingly. 
 
3.The customer shall lose his claims for warranty and damages if he improperly treats, stores, or processes the delivered goods or exposes them to influences of weather, or has them reworked or treated by third parties without our consent, or if he does not give us an opportunity to review the alleged defects. For this, the burden of proof rests with the customer. Claims for warranty and damages are excluded if they are caused by normal wear and tear or ageing. 
 
4.In the case of a justified complaint regarding defects or the lack of warranted characteristics, such complaint having been raised in due form and time, we will at our discretion and free of charge rework, exchange or provide substitute delivery for the goods or parts thereof which are provably useless due to circumstances prior to the passing of the risk, including but not limited to faulty production, bad materials or defective workmanship. For faulty goods we ma, at our discretion, also issue credit notes which will be offset against subsequent deliveries. If the above warranty measures are declined without giving reason, fail or are impossible, the customer may demand rescission. 
 
5.We are only liable for consequential harms caused by a defect, in particular those due to the lack of warranted characteristics, if the customer points out in writing their potential threat upon conclusion of the contract and if we assume a specific initial obligation thereon. 
 
6.Further claims regarding apparent or hidden defects or warranted characteristics, including but not limited to consequential damage, are excluded to the extent that this is legally admissible. All Claims for damages against us, including those due to breach of contract (other than delay or impossibility), tortious acts (in particular regarding product liability) or other legal reasons (e.g. advice) only exists, to the extent that this is legally admissible, in cases of intent or gross negligence by us, our managers, employees or persons employed in the performance of our obligation. The same applies to claims by the customer due to fault at the time of the conclusion of the contract, breach of contract (other than delay or impossibility) and instructions for use. These claims become statue-barred after six months. The limitation periods begin to run upon delivery. Claims for damages are limited to the invoice value of our products which are directly involved in the event causing the damage unless the amount of loss foreseeable at the conclusion of the contract is lower. 
 
7.If we have provided goods or services on the basis of a customer specimen, formula or other customer instruction, any claim for warranty against us is excluded. The same applies if our specimen, samples or formulas are changed at the customer’s request. 
 
8.For third party products which are resold by us separately or combined or mixed with other products claims for warranty against us are excluded. To this extent we assign to the customerour existing claims for warranty or damages against the suppliers in question. 
 
VII. Final provisions


1.The invalidity of any foregoing provision shall not affect the validity of the other provisions. If any provision of this contract is invalid, it shall be replaced by a valid provision which comes closest to the economic propose of the invalid provision, taking into account the provisions mentioned in item I.2. 
 
2.For these terms and conditions and the entire legal relationship with the customer the law of the Federal Republic of Germany shall apply exclusively. The applicability of the uniform international law on the sale of goods is excluded. 
 
3.If the customer is a fully qualified merchant as defined by the Commercial Code, a legal entity of public law, or a special fund under public law, Wertheim/Main is agreed as the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship, provided that we my bring action against the customer at any other legal venue.