Juchem Gruppe - General Terms and Conditions of Business

General Terms and Conditions of Business

General terms and conditions of sale and delivery of the Juchem Group for application with companies and consumers
Version: October 2004
§ 1 Validity of the terms and conditions of business

1. The following terms and conditions of business apply for all business transactions of the companies of the Juchem Group cited below:
- Franz Juchem GmbH & Co KG
- Juchem GmbH
- Lothringer Mühle GmbH
- Megro GmbH & Co KG
- May Landhandel GmbH
- Bliesmühle GmbH
- Schmalz GmbH
- Hühnerfarm Heddert GmbH & Co KG

2. Consumers as defined by these general terms and conditions of business are natural persons who conclude a legal transaction for a purpose which cannot be assigned to either their commercial or their independent professional activity.
Entrepreneurs are natural or legal persons or joint partnerships
with legal capacity, which upon concluding a legal transaction act by exercising their commercial or independent professional activity. Buyers as defined by these general terms and conditions of business are both consumers and entrepreneurs.

3. All our deliveries, services and offers are realised exclusively on the basis of the terms and conditions of business below. Other conditions are not a component of the contract, even if we do not expressly contradict them.
Deviations from the above terms and conditions of business only become effective if we expressly confirm them in writing. If we carry out the delivery or service without express contradiction, it can in no case be deduced from this that we have accepted possible purchase conditions of the buyer. The assumption of our delivery or service is deemed to be recognition of our general terms and conditions of business.

4. The present terms and conditions of business apply for all future business relations, even if the terms and conditions of business are not agreed separately again.

5. The standard conditions of the German cereal trade as amended apply for all sales and deliveries of articles form the cereals sector.

6. The terms and conditions of business can be viewed in the internet at www.juchem.de.

1. The following terms and conditions of business apply for all business transactions of the companies of the Juchem Group cited hereinafter:- Franz Juchem GmbH & Co KG- Juchem GmbH- Lothringer Mühle GmbH- Megro GmbH & Co KG- May Landhandel GmbH- Bliesmühle GmbH- Kurt Schmalz EDSCH Schaumzuckerwaren GmbH- Hühnerfarm Heddert GmbH & Co. KG2. Consumers as defined by these general terms and conditions of business are natural persons who conclude a legal transaction for a purpose which cannot be assigned to either their commercial or their independent professional activity. Entrepreneurs are natural or legal persons or joint partnerships with legal capacity which on concluding a legal transaction act by exercising their commercial or independent professional activity. Buyers as defined by these general terms and conditions of business are both consumers and entrepreneurs. 3. All our deliveries, services and offers are realised exclusively on the basis of the terms and conditions of business below. Other conditions are not a component of the contract, even if we do not expressly contradict them. Deviations from the above terms and conditions of business only become effective if we expressly confirm them in writing. If we carry out the delivery or service without express contradiction, in can in no case be deduced from this that we have accepted possible purchase conditions of the buyer. The assumption of our delivery or service is deemed to be recognition of our general terms and conditions of business. 4. The present terms and conditions of business apply for all future business relations, even if the terms and conditions of business are not agreed separately again. 5. The standard conditions of the German cereal trade as amended apply for all sales and deliveries of articles form the cereals sector. 6. The terms and conditions of business can be viewed in the internet at.

§ 2 Conclusion of contract, prices

1. Our offers are without engagement and not binding. Declarations of acceptance and orders of the buyer require the written form for the legal effectiveness of our confirmation. The order confirmation can be realised, in particular, by email or by the delivery of the goods in line with the order.

2. The prices are oriented towards the price list relevant at the time of order confirmation. Value added tax is charged at the statutory limit. Our prices do not include – unless otherwise agreed – packaging and freight costs, any other incidental expenses and transport insurance to be taken out at the request of the buyer.

3. We reserve the right to also deliver products with improvements usual for the sector and/or deviations reasonable for the buyer.

4. Accepted orders cannot be cancelled by the customer without our approval.

§ 3 Payment conditions

1. Insofar as not otherwise agreed, our invoices must be paid immediately without discount. Unauthorised cash discounts are not recognised.

2. If the payments made by the customer do not extend to the liquidation of all debts, the oldest debt is liquidated – also in the case of a provision by the customer to the contrary. If interest and/or costs have resulted, a performance insufficient for liquidating the debt divergent from clause 1 is first of all calculated for the oldest costs, then for the oldest interest and finally on the main performance under the proviso of clause 1.

3. If the buyer is a consumer, we are entitled to charge interest from the payment due date to the amount of 5 percent above the statutory base lending rate p.a. If the buyer is an entrepreneur, the interest rate is 8 percent above the respective statutory base lending rate p.a. We are also entitled to enforce all our outstanding claims against the buyer after the latter falls into arrears and only carry out deliveries to be performed by us against cash in advance or securities of an equal value. The corresponding applies in the case of a deterioration in the credit worthiness of the buyer which enters into affect after conclusion of contract or which becomes known after conclusion of contract and which jeopardises the fulfilment of the payment obligations to us.

4. Bills of exchange are only accepted after express agreement. Bills of exchange and cheques are only deemed to have been paid after their actual redemption. Costs and expenses due are at the expense of the buyer on redemption.

5. All costs such as payment reminders, debt collection fees and similar resulting from delayed payments shall be invoiced to the buyer.

6. The repayment of payments on account of counterclaims disputed by use and not legally effective or offsetting with counterclaims disputed by use and not legally effective is not permitted.

§ 4 Delivery, delivery times

1. The dates and schedules cited by us are not binding, insofar as not expressly agreed otherwise.

2. Delivery periods begin with the day of order confirmation. If information from the customer should be required for executing the order, the delivery dates begin at the time at which we receive the required information at the earliest.

3. Delivery and performance delays owing to force majeure or other unforeseeable events which are beyond our control, which make the delivery difficult to a significant degree or even impossible – this includes in particular strikes, official orders, legal lockouts – entitle us to postpone the deliveries or services by the duration of the hindrance plus an appropriate period of adjustment or to withdraw from the contract in whole or in part in the case of impossibility owing to the part not yet fulfilled. We shall inform the buyer as quickly as possible concerning the unavailability of the delivery and its anticipated duration. If the delay lasts longer than one calendar month, the buyer is entitled to withdraw from the not yet fulfilled part of the contract after allowing an appropriate period of grace after expiry of this period.
Insofar as damage compensation claims also arise in the event of our fault, Section 9 shall apply.
If the delay lasts longer than one calendar month, the buyer is entitled to withdraw from the not yet fulfilled part of the contract after allowing an appropriate period of grace after expiry of this period. Insofar as damage compensation claims also arise in the event of our fault, Section 9 shall apply.

4. The internet orders of the “real men” baking mixtures shall be dispatched within 7 days after receipt of payment.

§ 5 Transfer of risk, transport costs

1. With delivery by us or in vehicles operating on our behalf, the danger shall pass to the buyer upon transfer at the destination.

2. In other cases, the danger shall pass to the buyer as soon as the goods have been submitted to the person carrying out the order or have left our warehouse for the purpose of dispatch.

3. Without the prerequisites of paragraphs 1 or 2, the danger shall pass to the buyer if the latter falls into default in acceptance.

§ 6 Retention of title

1. The objects sold shall remain our property until fulfilment of all claims owed to us from the business relation including claims which shall arise in future from contacts concluded at the same time or later. This also applies if individual claims or all claims are recorded in a current invoice and the account balance is drawn and recognised.

2. The buyer is revocably entitled to resell the goods under reservation of title (retained goods) in a correct and proper business transaction. Other dispositions, in particular pawning or transfers of ownership by way of securities are not permissible.

3. The buyer shall now assign to us all claims for the sake of fulfilment which become due to him from the resale in respect to his buyers or third parties; we shall accept this assignment upon conclusion of contract. If the reserved goods are resold together with other goods of which we have no ownership, the claim of the buyer in respect to his purchaser shall be deemed to be assigned to the amount of the delivery price agreed between us and the buyer. We shall revocably authorise the buyer to collect the claims assigned to us in his own name and on his own behalf.

2. The buyer is revocably entitled to resell the goods under reservation of title (retained goods) in a correct and proper business transaction. Other dispositions, in particular pawning or transfers of ownership by way of securities are not permissible.

3. The buyer shall now assign to us all claims for the sake of fulfilment which become due to him from the resale in respect to his buyers or third parties; we shall accept this assignment with conclusion of contract. If the reserved goods are resold together with other goods of which we have no ownership, the claim of the buyer in respect to his purchaser shall be deemed to be assigned to the amount of the delivery price agreed between us and the buyer. We shall revocably authorise the buyer to collect the claims assigned to us in his own name and on his own behalf.

4. The processing of reserved products shall always be carried out by the buyer for us, without us being encumbered with obligations from this. If the reserved products are processed or inseparably mixed with other goods not belonging to us, we shall thus acquire the joint property of the new item in the ratio of the value of the reserved products to the value of the other processed or mixed goods at the time of the processing or mixing.

5. The buyer is obliged to properly store the goods under retention of title and treat them with due care and respect. The same applies for new items which are created through processing or mixing.

6. If third parties are due to access the reserved products, in particular on pawning, the buyer must draw attention to our property in a suitable manner and notify us of this. Paragraph 5 clause 2 applies correspondingly.

7. In the event that the buyer acts so as to breach the contract, in particular with payment arrears, we are entitled to demand the reserved products back and revoke the authorisation for sale in the proper business transaction (Paragraph 2 clause 1) and the direct debit authorisation (Paragraph 3 clause 3) or to withdraw from the contract. If the buyer is an entrepreneur, a withdrawal from the contract is only possible in the reacceptance of the reserved goods if we expressly declare this in writing. After reacceptance of the reserved items, we are in all cases entitled to the liabilities of the buyer for utilisation of the reserved products with calculation of the proceeds – less appropriate utilisation costs. Paragraph 5 clause 2 applies correspondingly.

8. If a bill of exchange liability on our part is substantiated in conjunction with the payment of the purchase price by the buyer, the retention of title as well as the claim underlying this from product deliveries shall not expire before redemption of the bill of exchange by the buyer as acceptor.

9. If the value of the existing securities exceeds the claims to be secured by more than 20%, we are to this extent obliged for a release on the written request of the buyer; the selection of the securities to be released is based on
our choice.

§ 7 Condition of the goods, sampling

1. Only the conditions described in the product descriptions, specifications, identifications etc. apply as the nature of the goods, insofar as not otherwise agreed.

2. We shall do our utmost to deliver perfect products. Products such as cereals, animal feeds etc. are, however, associated with fluctuations in individual properties within the framework of the statutory tolerance limits usual for the sector. Our samples or descriptions can therefore only represent average values. In particular, our data is not to be understood as a guarantee in the sense of Section 443 of the German Civil Code.

3. Sampling and analyses for animal feeds are carried out in accordance with the relevant applicable animal feed and analysis ordinance. Sampling and analyses for other goods are carried out in accordance with the corresponding statutory regulations.

§ 8 Rectification for faults

1. We provide a guarantee for defects through replacement delivery or reworking according to our choice. If the buyer is a consumer, he shall have the choice whether the subsequent fulfilment is to be a reworking or a replacement delivery. Deviations as defined by Section 2.3 and Section 7 cannot receive complaint.

2. Obvious defects can only be claimed immediately after receipt of the goods and must be confirmed in writing by our driver or transport enterprise. Hidden defects must be reported to us immediately after their discovery. Failure to comply with the statutory examination and/or the
above duty to complain results in exclusion of the right to enforce warranty claims. In the case of improper storage, treatment or processing by the buyer, the right to enforce a claim for any defects is excluded, unless
the buyer can demonstrate at his expense that the defects are through our fault.
Moreover for the remaining part, the buyer must bear the full demonstration expense for all claim requirements, in particular for the defect itself, for the time of origination of the defect and for the timeliness of the notice of defect.

3. After two failed attempts at reworking, the buyer can demand reduction or withdrawal from the contract. However withdrawal is only possible if a partial service provided is of no interest to the buyer or the defect triggering the warranty is considerable. Section 9 applies for possible damage compensation claims.

4. If the buyer is an entrepreneur, warranty claims on account of a defect become barred by the statute of limitations for new goods after one year after delivery of the product; in the case of used goods, the warranty is excluded. If the buyer is a consumer, warranty claims become barred by the statute of limitations for new goods after two years after delivery of the product, in the case of used goods after one year.

5. We do not guarantee to the buyer any warranties for the condition of the item. Any guarantees of third parties remain unaffected hereby and must be enforced directly in respect to the latter.

§ 9 Liability restrictions

1. A liability on our part in conjunction with this contract is excluded, insofar as the cause of the damage is the result of wilful intent or gross negligence and insofar as there is no injury to the life, limb or health of the buyer; insofar as an essential contractual obligation is violated by us without wilful intent or gross negligence on our part, our duty to replace is only restricted to the damage which has typically resulted.

2. Damage compensation claims of the buyer on account of a defect shall be barred by the statute of limitations after one year after delivery of the goods, to be precise irrespective of the legal basis supporting the claim, unless a longer term of limitation is enforced by law.

3. Our responsibility under the Product Liability Act remains unaffected.
The above liability restrictions also do not apply if we are reprehensible for fraudulence or the assignment of a guarantee contrary to Section 8.4.