Service

General Conditions of Sale, Delivery and Payment

1. General

1.1. These General Terms and Conditions of Sale, Delivery and Payment exclusively constitute an integral part of all present and future contracts, offers, deliveries and other services of SuCrest. SuCrest hereby objects to the application of any General Business Terms and Conditions of the Purchaser, even in the event that they are conveyed to SuCrest by a letter of confirmation or by other means. Differing, conflicting or additional General Business Terms and

1.2. Conditions of the Purchaser will only form an integral part of the Agreement, if SuCrest expressly agreed to it by written confirmation. This approval requirement shall apply in any event, even if SuCrest has knowledge of the Genrals Business Terms and Conditions and de-livers to the Purchaser unconditionally.

1.3. Any supplementary oral understandings or assurances, the exclusion of, alterations or amendments to these General Terms and Conditions of Sale, Delivery and Payment shall require express confirmation in writing by SuCrest in order to become effective. This shall also apply to the waiving of the written form requirement contained in the preceding sentence.

2. Offers and Conclusion of Contracts

Offers of SuCrest are without obligation and are not binding. All orders shall be binding for SuCrest only upon confirmation by SuCrest of the order in writing or delivery of the goods by SuCrest.

3. Prices

All price quotations shall be ex works or (at the discretion of SuCrest) ex warehouse and shall include value-added tax, if SuCrest does not express otherwise.

4. Delivery

4.1. The service obligations of SuCrest shall be subject to SuCrest receiving correct and timely deliveries from its suppliers, if a matching cover transaction was contracted.

4.2. Unless otherwise agreed upon in writing, deliveries shall take place ex works or ex warehouse; SuCrest shall ship the goods at Purchaser's risk and expense, whereby SuCrest is entitled to send the goods to the Purchaser from a location other than the place of performance mentioned in Clause 11.1. The choice of route of transportation and means of transportation shall be at SuCrest's discretion. The assertion of claims for damages sustained during trans-portation shall be the responsibility of the Purchaser.

4.3. The Purchaser is obliged to consent to partial performance, provided that this is not un-reasonable for it in the individual case.

4.4 In case of default of acceptance by Purchaser, the Purchaser fails to cooperate or the delivery is delayed for some other reasons, caused by the Purchaser, SuCrest is entitled to compensation for damages resulting from this, including all additional expenses (such as storage costs). SuCrest may calculate an overall compensation of 0,5 % of the delivery value per each completed week, however only to a maximum of 5 % of the delivery value, beginning with the delivery term or - if there is no such term - with notice of readiness for shipment. The proof of higher damage and statutory claims (in particular compensation for additional expenses, appropriate indemnification, termination) will remain unaffected; the overall com-pensation has to be taken into account in case of further monetary claims.

5. Notification of Defects and Rights of the Purchaser in the case of Defects

5.1. The Purchaser shall examine goods delivered without undue delay after receipt. Defects discovered in this examination must be reported to SuCrest without delay at the latest within two weeks from receipt of the goods, other defects forthwith upon discovery, but at the latest within two weeks after their discovery, in writing. The timeliness of the notification shall de-pend on the date of receipt by SuCrest. All rights of the Purchaser with regard to the defect shall expire upon failure to report defects in due time.

5.2. Any claims of the Purchaser due to defects shall be limited to the subsequent performance. At the discretion of SuCrest, subsequent performance shall be either the repair of the defect or through delivery of defectfree goods. If attempts at repair or replacement fail, the Purchaser may at his choice cancel the purchase contract or reduce the purchase price.

5.3. To the extent that SuCrest is obligated by law to pay damages due to a defect - irrespec-tive of the legal ground - including any damage claims for breach of contract, negligence during contractual negotiations ("Verschulden bei Vertragsverhandlungen") and tort - this obligation of compensation shall be limited in accordance with Clause 9.

5.4. Any rights of recourse of the Purchaser pursuant to Section 478 of the German Civil Code shall remain unaffected. To the extent that under such recourse, SuCrest is obligated by law to pay damages, this obligation of compensation shall be limited in accordance with Clause 9.

5.5. Claims of the Purchaser due to defects shall become statute-barred after one year commencing with delivery of the goods. This shall not apply in the case of intent or fraudulent concealment of a defect . The aforementioned oneyear limitation period for defects shall furthermore not apply if the damage is caused by gross negligence of the legal representatives or managerial employees of SuCrest, or the damage is due to personal injury, or SuCrest is liable under tort. The statutory provisions on the limitation of any claims to recourse in accordance with Section 479 of the Civil Code as well as on the limitation and exclusion periods pursuant to the Product Liability Act shall remain unaffected.

6. Usability of the Goods

The Purchaser must itself inspect the goods with respect to their usability for the respective particular purpose using the procedures applied by it, with which SuCrest unfamiliar. Any recommendations issued by SuCrest about a specific use of the goods are and can only be suggestions with respect to the formulae and procedural secrets of the Purchaser, which are not known to SuCrest, and do not mean that the goods are suitable for the intention pursued by the Purchaser and the procedure used by the Purchaser. Any liability for such suggestions is excluded.

7. Retention of Title

7.1. Title to all goods delivered by SuCrest (hereinafter also referred to as "Reserved Goods") shall remain the property of SuCrest until all - present and future - claims of Su-Crest against the Purchaser arising out of the business relationship have been satisfied. For current accounts, the retention of title shall apply as security for the respective balance claim of SuCrest.

7.2. In the event that the Reserved Goods are combined, mixed or blended with moveables of the Purchaser in such manner that the goods of the Purchaser are to be seen as the main goods, the Purchaser hereby transfers to SuCrest its title to the entire goods in the ratio of the value of the Reserved Goods to the value of the other combined, mixed or blended goods. If Reserved Goods are combined, mixed or blended with moveables of a third party in such manner that the goods of the third party are to be seen as the main goods, the Purchaser hereby assigns to SuCrest its claim against the third party to remuneration in the amount cor-responding to the final invoice amount attributable to the Reserved Goods.
The product resulting from the combination or mixing (hereinafter "New Product") and the (joint) title rights to the New Product to which SuCrest is entitled and which shall be trans-ferred to SuCrest according to this Clause 7.2 as well as the remuneration rights assigned pursuant to this Clause 7.2 shall serve as security of the claims of SuCrest in the same manner as the Reserved Goods themselves pursuant to Clause 7.1.

7.3. The Purchaser is authorised to resell the Reserved Goods or the New Product in the normal course of business subject to a retention of title. The Purchaser is obligated to ensure that the claims from such resale transactions can be transferred to SuCrest in accordance with the requirements of Clauses 7.4 and 7.5.
The claims of the Purchaser from the resale of the Reserved Goods are hereby assigned to SuCrest. They serve SuCrest's security to the same extent as the Reserved Goods. If the Purchaser sells the Reserved Goods together with other goods not supplied by SuCrest, the assignment of the claim shall only apply in the amount of the final invoice amount resulting from the resale of the Reserved Goods. For the sale of goods to which SuCrest has joint title by virtue of Clause 7.2 or the statutory provisions on the combining, mixing and blending of products, the assignment of the claim shall apply in the amount of the share of joint title of SuCrest.

7.5 If the Purchaser places his claims from the resale of Reserved Goods in a current ac-count relationship with his purchasers, he hereby assigns to SuCrest the acknowledged or final balance in his favour which is equivalent to the total amount of the claims placed in the current account relationship from the resale of the Reserved Goods. Clause 7.4 sentences 3 and 4 shall apply mutatis mutandis.

7.6 The Purchaser is authorised to collect the claims assigned to SuCrest from the resale of the Reserved Goods or the New Product. The Purchaser is not permitted to assign the claims from resale to third parties, including under a genuine factoring agreement.

7.7 SuCrest can revoke the authorisation to resell the Reserved Goods and the New Product under Clause 7.3 and the authorisation to collect the claims assigned to SuCrest under Clause 7.6 in the event of default on payment or discontinuation of payment by the Purchaser, as well as in the event of the application to open insolvency proceedings or in other cases of impaired creditworthiness or trustworthiness of the Purchaser. In the event of revocation of the authorisation to collect, the Purchaser shall be obligated to inform his purchasers immediately of the assignment of claims to SuCrest and to provide SuCrest immediately with all information and documentation required for collection. In such case, the Purchaser is furthermore obligated to surrender or transfer to SuCrest any securities to which he is entitled for claims against his purchasers.

7.8 The Purchaser undertakes to insure the Reserved Goods sufficiently to their new value against fire and water damage and theft. It hereby assigns in advance its claims under the in-surance contracts to SuCrest.

8. Payment, Set-off, Retention

8.1 Payments are to be made within the agreed payment period. The punctuality of the payment is determined by the date on which SuCrest receives the funds, or on which they are unconditionally credited to SuCrest's account.

8.2 The Purchaser shall only be entitled to discounts to the extent allowed by SuCrest. In this case, the full invoice amount, minus the discount, must be received on the account of SuCrest by no later than the discount date specified by SuCrest. Even a legitimate retention shall not entitle the Purchaser to a later discount.

8.3 SuCrest is not obligated to accept payments by cheque or bill of exchange; in any case the acceptance of cheques and bills of exchange shall only be for the sake of fulfilment. Acceptance shall not constitute the granting of a respite for the claim of SuCrest. Costs and discount charges shall be borne by the Purchaser. If payment is made by using means which the Purchaser has obtained though discounting an accepted bill of exchange, the payment claim of SuCrest shall only be settled upon redemption of the bill of exchange by the Purchaser.

8.4 If there are several outstanding claims against the Purchaser and a payment by the Purchaser is insufficient to settle all claims, settlement shall be made in accordance with the statutory provisions (Section 366 para. 2 of the Civil Code), even if the Purchaser has expressly made payment for a specific claim.

8.5 The Purchaser shall only be entitled to setoff undisputed counterclaims and counterclaims finally asserted by or ready for deciding by the court. The Purchaser shall only be enti-tled to withhold or refuse performance, for example due to defects of the goods, in consideration of undisputed claims finally asserted by or ready for deciding by the court which stem from the same contractual relationship.

8.6 SuCrest is entitled to claim interest on late payments according to the respective valid statutory regulations. SuCrest reserves the right to claim further damage caused by delay.

9. Liability

9.1 For damages caused by intention or gross negligence of legal representatives or managerial employees of SuCrest, as well as damages due to personal injury, SuCrest shall be liable in accordance with the statutory provisions. In the event of intention or gross negligence of mere vicarious agents as well as in the event of minor negligence causing the violation of essential contractual duties which are indispensable for the achieving of the contractual purpose and on the strict compliance with which the Purchaser must therefore be able to rely, SuCrest shall be liable in accordance with the statutory provisions, limited to such damages as were foreseeable for SuCrest at the time of entering the contract in terms of type and scope. In all other cases, claims of the Purchaser for direct or indirect damages - irrespective of the legal ground including any damages claims for culpa in contrahendo as well as under tort - are excluded.

9.2 Any statutory liability for a lack of characteristics of the goods guaranteed by SuCrest or under the Product Liability Act shall remain unaffected.

9.3 The limitations of liability specified in this Clause 9 shall also apply to any liability of the legal representatives, managerial employees and other vicarious agents of SuCrest to the Purchaser.

10. Indemnification of Tax-privileged Deliveries
In the case of tax-privileged deliveries, the Purchaser warrants that the legal requirements for the tax concession are fulfilled. It shall indemnify SuCrest against all claims resulting from the non-fulfilment of these legal requirements.

11. Force Majeure

11.1 All unforeseeable occurrences and circumstances, not avoidable with reasonable means despite of the exercise of reasonable diligence (force majeure), such as strike, legal lock-out, unforeseeable business disruptions and production breakdowns, fire, governmental directives, delayed deliveries of suppliers, shortages of manpower, energies or raw materials, loss of appropriate means of transportation, traffic disruptions etc., shall extend terms of delivery and terms of acceptance for the duration of such disturbance or event and its effects and the par-ties shall be released from its obligation. The parties will have no right to indemnification and no obligation for procuring a replacement.

11.2 In the event of any case of force majeure, as described in section 1, the parties will - usually within 7 working days - notify each other and inform about the estimated period and extent of the disturbance or event.

11.3 If the execution of the contract becomes unacceptable for one of the parties thereto due to an event of force majeure, in particular if making or taking delivery is thus delayed by more than one (1) month, then each party shall be entitled - on exclusion of all further claims - to withdraw from the contract in respect of the quantity affected by the event preventing such delivery from being made or taken.

12. Ethics Policy

The Purchaser is obligated to respect the ethic and social responsibility of SuCrest and will in particular follow the respective SuCrest guidelines and standards.

13. Place of Performance, Venue and Applicable Law

13.1 The place of performance for delivery and payment shall be Hochheim am Main.

13.2 To the extent that the Purchaser is a fully qualified merchant, a public law entity or a public law special fund, Hochheim am Main shall be the exclusive place of venue for all dis-putes directly or indirectly arising out of the contractual relationship. However, SuCrest is entitled to bring an action before any other competent court instead of the court of the venue agreed above.

13.3 The laws of the Federal Republic of Germany shall apply. The provisions of the United Nations Convention on Contracts for the International Sale of Goods are excluded.

14. Severability

If any provisions of these General Conditions of Sale, Delivery and Payment are or will be-come invalid this shall not affect the validity of any other provision.