Delivery and Payment Conditions of Cornelius GmbH

Status: January 2015

1. Application, conclusion of contract

1. Our delivery and payment terms apply to all current and future deliveries of our products to our business partners (purchaser), insofar as these are entrepreneurs and acting within the scope of their business activities (§ 14 BGB).
2. Our offers are not binding. A contract is concluded only through our written confirmation of order and is based solely on its content and these conditions. Additional verbal agreements are not affected.
3. We are entitled to make improvements and changes in shape, color and/or weight in our products within reason.
4. Differing, conflicting or additional terms and conditions of the purchaser, even if known, are not part of the contract unless we have expressly agreed in writing. Our delivery and payment terms shall also apply if we execute the delivery without reservation in the knowledge of conflicting or deviating conditions of the purchaser.
5. Our employees are only entitled to written commitments. Therefore verbal agreements only become valid when confirmed in writing.

2. Prices, payment

1. Deliveries of 50 kg or over are free. Otherwise, our prices are ex works. All prices are including packaging and VAT applicable on the date of invoice. The purchaser shall pay in connection with the import of our products any duties, such as tariffs, import, sales tax, etc.
2. Payments, providing our services have been provided, must be made without cost deduction within 10 days from the invoice date and without charges. If the payment date is exceeded, payment is in arrears. The time of the payment is defined as receipt of the money in our account.
3. Payments per bill of exchange are not accepted; checks are only accepted on account of performance, whereby the receipt of a credit note to our account shall be decisive for keeping the term.
4. If payment targets are missed — or payment is delayed — we are entitled to charge interest at the statutory rate. The assertion of further damages for delay remains unaffected.
5. The purchaser is entitled to compensation only if his claims were found to be uncontested or legally binding. A lien may also only be exercised if their counterclaim arises from the same contractual relationship.
6. If, after conclusion of the contract, the risk of lack of service on the part of the purchaser is recognizable, we are entitled to perform our outstanding services only against advance payment or security. In this case, deferred receivables are due immediately. If, despite a reasonable extension, services are not provided by the purchaser, we can, without prejudice, withdraw from the contract without loss of any further rights. A grace period may be waived if the purchaser has applied for the opening of insolvency proceedings against their assets or has made an affidavit or has opened insolvency proceedings on their assets or such an opening was rejected due to lack of assets.

3. Delivery, transfer of risk

1. Stated deadlines and appointed times are only binding if this was expressly agreed.
2. Binding periods of delivery and performance shall commence on the date of the order confirmation. In later-issued additional or supplementary orders, the periods or dates shall be extended accordingly.
3. In cases of force majeure, such as war, etc., natural disasters or during industrial action, we will, as far as we are not responsible for the latter, be freed from the obligation to make timely delivery or performance. Agreed deadlines are extended by the duration of the disruption. Insofar as this is not obviously known, as in the case of war and natural disasters, the purchaser shall be informed in an appropriate manner. If the end of the disturbance is not foreseeable or if it lasts longer than three months, either party is entitled to cancel the contract.
4. If a delivery or service date is not achieved for reasons for which we are responsible, and if an appropriate extension set by the purchaser — agreed by the parties in this regard as a period of at least three weeks — has expired without success, the purchaser may withdraw from the contract.
5. With the handover of the goods delivered to the transport company or the purchaser, the risk of accidental loss or deterioration passes over to the purchaser. As far as the dispatch or handover is delayed due to reasons caused by the purchaser, the risk passes over on the communicated day of delivery.

4. Extended, prolonged retention of title

1. Our products remain our property until full payment of all our claims from the business relationship with the purchaser. In the case of a current account with the purchaser, the retention of title serves as a security of our claim to a payment of the balance.
2. If our products are processed by the purchaser, we as a manufacturer are co-owners of the new products in proportion to the value of our products to the other objects at the time of processing. Where processing takes place in a way that the matter is to be considered as property of the purchaser, the purchaser acknowledges our proportional ownership. The resulting retained products will be kept by the purchaser for us.
3. If the value of our securities exceeds our secured claims by more than 50%, we will release further securities. If the purchaser invalidates the assumed safety margin of 50% through a substantiated statement of a different risk situation, they may request additional release.
4. The purchaser is obliged to treat retained products carefully.
5. The purchaser is entitled to sell the retained products in the ordinary course of business and to work under the conditions set above. The purchaser is not entitled to pledge, transfer the title for the purposes of securities or dispose of them in any other manner that could affect the (joint) property of retained products.
6. The purchaser is revocably authorized to collect in trust the claims assigned to us in their own name. This authorization, as well as the right to resell may be revoked if the purchaser gets in default with material obligations such as payment obligations. After the revocation, we are entitled to disclose the assignments and collect the receivables.
7. In the case of resale of retained products the purchaser shall assign claims arising from any such business to us — herewith we accept such an assignment — until all our claims against him are fulfilled. If this affects retained products or if the retained product is sold together with other goods of the purchaser, the demand is only partially transferred in amount of our outstanding claims against him plus a safety margin of 50%, whereby the buyer can invalidate the assumed safety margin of 50% by providing a substantiated statement of a different risk situation.
8. In enforcement measures by third parties against the retained products, as well as in the assertion of claims to the retained products, the purchaser must immediately notify the handing over of the prosecution documents necessary for the pursuit to our interests. A notification is also required if the retained products are affected by other factors or threatened by degradation. The purchaser will inform third parties of our existing ownership of the retained products. Moreover, any information we request about the retained goods and on the claims assigned to us in the context of retained products must be provided by the purchaser at any time.

5. Quality, liability for defects

1. Our products comply with food regulations and are subject to voluntary control by an independent impartial food expert.
2. Otherwise, the quality of our products, besides the type of use known to us under the contract, is defined only by concretely agreed performance parameters. Statements in catalogs and other publications known to the purchaser complement the above quality definition only if they were available to the purchaser from us immediately before or in connection with the award of the contract.
3. Guarantees of quality are only applicable when expressly designated as guarantees or unambiguously understood as a warranty of certain features that include a concrete acceptance of liability.
4. The purchaser is obliged to make shortcomings known without delay and in writing on the day of receipt of the goods. Otherwise the assertion of warranty claims is excluded. The purchaser bears this burden of proof for all claims, even for the time of discovery of the defect and the timeliness of the complaint.
5. The unreserved acceptance of our products excludes warranty claims of the purchaser. The products shall be considered as approved.
6. In case of deficiencies we reserve the right to choose the type of remedy for the deficiency — or supplementary performance. If we refuse fulfillment or if the supplementary performance objectively fails, the purchaser may opt to reduce the purchase price or withdraw from the contract. In the case of minor defects the purchaser may not exercise their right of withdrawal. The foregoing shall apply only unless anything more or something else was expressly pledged under a guarantee or a guaranteed property.
7. The rights of the purchaser due to defects expire one year after delivery. The statutory period of limitation applies equally well in cases of fraud. In case of claims for damages due to a defect, the following paragraph 6 applies.
8. In the case of defects that were caused by the purchaser, in particular improper storage or other inadequate treatment, the rights of the buyer due to defects do not apply.

6. Liability for damages

1. Our liability for breach of obligations and tort is limited to intent and gross negligence and compensation for typical damage. This does not apply to injury to life, limb and health and claims for breach of cardinal duties and compensation for damage caused by delay. Insofar we are liable for every degree of fault. As far as damage not resulting from injury to life, limb and health, we are only liable for the typically occurring damage.
2. The foregoing limitation shall not apply in cases of fraud and mandatory statutory liability, in particular under the Product Liability Act. If this is outreached by a liability commitment for assuming a specific guarantee or assurance outreaches, this extended liability applies.
3. In the resale of our products the purchaser shall indemnify us internally from product liability claims of third parties, as far as he is responsible for the defect causing the liability.

7. Final provisions

1. Legally relevant declarations and notifications which the purchaser has to give to us or any third party must be in writing.
2. If a provision is wholly or partly ineffective, the validity of the remaining provisions will remain unaffected.
3. The purchaser is not entitled to assign any rights or claims under this contract.
4. If the purchaser is a merchant, a legal entity under public law or a public special asset, exclusive jurisdiction for all disputes from and in connection with this contractual relationship is Mannheim.
5. The law of the Federal Republic of Germany applies under exclusion of the UN Convention on the International Sale of Goods (CISG).