General Terms and Conditions

Section 1 Scope

1. The following General Terms and Conditions – hereinafter “GTC” – apply exclusively to entrepreneurs, legal entities under public law, or special funds under public law within the meaning of Sections 14 and 310 (1) of the German Civil Code (BGB).

2. All deliveries, services and offers of BEWITAL agri GmbH & Co. KG (hereinafter “BEWITAL agri”) are made exclusively on the basis of these GTC. Conflicting or deviating terms and conditions shall only be deemed accepted if BEWITAL agri has expressly accepted them in an individual case. Even without an express objection and upon acceptance and payment of goods, this shall not constitute recognition of the contractual partner’s terms and conditions.

3. Individual agreements made with the buyer in individual cases (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these GTC. Subject to proof to the contrary, a written contract or written confirmation by BEWITAL agri shall be decisive for the content of such agreements.

4. These terms and conditions shall also apply, in the version valid at the time, to all future contracts.

5. Amendments to these terms and conditions shall be communicated to the contractual partner in text form. Unless the contractual partner objects in writing within four weeks of receipt, the amendments shall be deemed approved.

Section 2 Conclusion of Contract

1. Offers made by BEWITAL agri are subject to change and non-binding unless expressly marked as binding. Technical and other changes are reserved. The buyer’s order of the goods shall be deemed a binding offer. Acceptance may be declared either in text form (e.g. by an order confirmation) or by delivery of the goods to the buyer. The contract shall be concluded with the content of BEWITAL agri’s order confirmation unless the recipient objects without undue delay. Supplements, amendments and ancillary agreements require written confirmation by BEWITAL agri to be effective; transmission in text form is sufficient.

2. The conclusion of the contract is subject to the proviso that, in the event of improper self-supply, performance may not be possible or may only be possible to the extent feasible. If performance is impossible due to lack of availability, the contractual partner will be informed. Any consideration will be refunded without delay.

3. BEWITAL agri reserves ownership or copyright in all quotation documents, illustrations, drawings, calculations and other documents used by BEWITAL agri. This also applies to written documents marked “confidential”. Before passing them on to third parties, using them itself, or allowing third parties to use them, the contractual partner requires the express consent of the rights holder.

Section 3 Prices and Payment Terms

1. Prices apply to the scope of services and deliveries stated in the order confirmation. Additional or special services will be charged separately. Unless otherwise agreed, prices are in euros ex works. Costs for packaging and shipping, statutory VAT, customs duties for export deliveries, as well as fees and other public charges will be invoiced and shown separately.

2. Unless otherwise agreed in writing, the invoice amount must be paid within thirty days, received by BEWITAL agri, without any deduction. Cheques shall only be deemed payment once cashed. During default, the purchase price shall bear interest at the applicable statutory default interest rate. BEWITAL agri reserves the right to assert further damages caused by default. For merchants, the claim to commercial maturity interest (Section 353 of the German Commercial Code (HGB)) remains unaffected.

3. Set-off against counterclaims of the contractual partner or retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been finally adjudicated. The buyer’s right to retain a portion of the purchase price that is reasonable in relation to the defect remains unaffected.

4. BEWITAL agri is – even within an ongoing business relationship –

entitled at any time to carry out a delivery in whole or in part only against advance payment. BEWITAL agri shall declare any such reservation at the latest with the order confirmation.

Section 4 Delivery Period and Delay in Delivery

1. The delivery period shall be agreed individually or specified by BEWITAL agri upon acceptance of the order.

2. If BEWITAL agri is unable to meet binding delivery periods for reasons for which BEWITAL agri is not responsible (unavailability of performance), BEWITAL agri will inform the buyer without undue delay and at the same time communicate the expected new delivery period. If performance is also unavailable within the new delivery period, BEWITAL agri is entitled to withdraw from the contract in whole or in part; any consideration already provided by the buyer will be refunded by BEWITAL agri without undue delay. A case of unavailability of performance in this sense includes, in particular, failure to receive timely self-supply from BEWITAL agri’s supplier if BEWITAL agri has concluded a congruent hedging transaction, neither BEWITAL agri nor its supplier is at fault, or BEWITAL agri is not obliged to procure in the individual case.

3. The occurrence of a delay in delivery by BEWITAL agri shall be determined in accordance with statutory provisions. In any case, however, a reminder from the buyer is required. If BEWITAL agri is in delay, the buyer may demand lump-sum compensation for its damage caused by delay. The lump sum amounts to 0.5% of the net price (delivery value) for each completed calendar week of delay, but no more than 5% of the delivery value of the goods delivered late. BEWITAL agri reserves the right to prove that the buyer suffered no damage or only significantly less damage than the above lump sum. Compensation shall be reduced accordingly.

4. The buyer’s rights pursuant to Section 7, item 8 of these GTC and BEWITAL agri’s own statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.

Section 5 Delivery, Transfer of Risk, Acceptance, Default of Acceptance

1. Delivery shall be ex works, which is also the place of performance for delivery and any subsequent performance. At the buyer’s request and expense, the goods will be shipped to another destination (sale by dispatch). Unless otherwise agreed, BEWITAL agri is entitled to determine the method of shipment (in particular the transport company, shipping route, packaging) itself. Deviating agreements must be made in writing.

2. The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, shall pass upon delivery of the goods to the forwarding agent, carrier or other person or institution designated to carry out the shipment. Where acceptance has been agreed, it shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall apply accordingly to an agreed acceptance. Handover or acceptance shall be deemed to have taken place if the buyer is in default of acceptance.

3. If the buyer is in default of acceptance, fails to perform an act of cooperation, or if delivery by BEWITAL agri is delayed for other reasons for which the buyer is responsible, BEWITAL agri is entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs).

Section 6 Retention of Title

1. Until full payment of all present and future claims of BEWITAL agri arising from the purchase contract and an ongoing business relationship (secured claims), BEWITAL agri retains title to the goods sold.

2. The goods subject to retention of title may neither be pledged to third parties nor transferred by way of security before full payment of the secured claims. The buyer must notify BEWITAL agri immediately in writing if an application is filed to open insolvency proceedings over its assets or if third parties take action (e.g. seizures) against goods belonging to BEWITAL agri.

3. In the event of a breach of contract by the buyer, in particular non-payment of the due purchase price, BEWITAL agri is entitled, in accordance with statutory provisions, to withdraw from the contract and/or to demand return of the goods on the basis of the retention of title. The demand for return does not simultaneously constitute a declaration of withdrawal; rather, BEWITAL agri is entitled merely to demand return of the goods while reserving the right to withdraw. If the buyer does not pay the due purchase price, BEWITAL agri may only assert these rights if BEWITAL agri has previously set the buyer an appropriate deadline for payment without success, or if setting such a deadline is dispensable under statutory provisions.

4. Until revoked in accordance with (c) below, the buyer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:

(a) The retention of title extends to the products created by processing, mixing or combining the goods to their full value, with BEWITAL agri deemed the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their ownership rights remain in place, BEWITAL agri shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered subject to retention of title.

(b) The buyer hereby assigns to BEWITAL agri, as security, in full or in the amount of any co-ownership share of BEWITAL agri pursuant to the above paragraph, the claims against third parties arising from the resale of the goods or the product. BEWITAL agri accepts the assignment. The buyer’s obligations set out in item 2 of this section also apply with regard to the assigned claims.

(c) The buyer remains authorised to collect the claim alongside BEWITAL agri. BEWITAL agri undertakes not to collect the claim as long as the buyer meets its payment obligations to BEWITAL agri, there is no impairment of its ability to perform, and BEWITAL agri does not assert the retention of title by exercising a right pursuant to item 3 of this section. If this is the case, however, BEWITAL agri may require the buyer to disclose to BEWITAL agri the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and notify the debtors (third parties) of the assignment. In addition, in this case BEWITAL agri is entitled to revoke the buyer’s authorisation to further resell and process the goods subject to retention of title.

(d) If the realisable value of the securities exceeds BEWITAL agri’s claims by more than 10%, BEWITAL agri will release securities of its choice at the buyer’s request.

Section 7 Warranty

1. The statutory provisions apply to the buyer’s rights in the event of defects in quality and title, unless otherwise provided below. In all cases, the statutory special provisions for final delivery of unprocessed goods to a consumer remain unaffected, even if the consumer has further processed them (supplier recourse pursuant to Sections 478 BGB). Claims arising from supplier recourse are excluded if the defective goods have been further processed by the buyer or another entrepreneur.

2. The basis for BEWITAL agri’s liability for defects is primarily the agreement made regarding the quality of the goods. All product descriptions and manufacturer information that are the subject of the individual contract or that were publicly disclosed by BEWITAL agri (in particular in catalogues or on its own website) at the time the contract was concluded shall be deemed an agreement on the quality of the goods.

3. If the quality has not been agreed, it shall be assessed in accordance with statutory provisions whether a defect exists or not (Section 434 (1) sentences 2 and 3 BGB). However, BEWITAL agri assumes no liability for public statements by the manufacturer or other third parties (e.g. advertising statements) to which the buyer did not draw our attention as being decisive for its purchase decision.

4. As a rule, BEWITAL agri is not liable for defects that the buyer knows about at the time of conclusion of the contract or does not know about due to gross negligence (Section 442 BGB). Furthermore, the buyer’s claims for defects require that it has complied with its statutory duties to inspect and give notice of defects (Sections 377, 381 HGB). In the case of goods intended for further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent upon delivery, inspection, or at any later time, BEWITAL agri must be notified thereof in writing without undue delay. In any case, obvious defects must be reported in writing to BEWITAL agri immediately upon delivery, and defects not recognisable during inspection must be reported in writing without undue delay upon discovery. If the buyer fails to properly inspect and/or report defects, BEWITAL agri’s liability for the defect not reported, not reported in time, or not properly reported is excluded in accordance with statutory provisions.

5. If the delivered item is defective, BEWITAL agri may initially choose whether to provide subsequent performance by remedying the defect (repair) or by delivering a defect-free item (replacement delivery). BEWITAL agri’s right to refuse subsequent performance under the statutory conditions remains unaffected.

6. BEWITAL agri is entitled to make the owed subsequent performance dependent on the buyer paying the due purchase price. However, the buyer is entitled to retain a portion of the purchase price that is reasonable in relation to the defect.

7. The buyer must give BEWITAL agri the time and opportunity required for the owed subsequent performance, in particular by handing over the complained-about goods for inspection purposes. In the event of a replacement delivery, the buyer must return the defective item to BEWITAL agri in accordance with statutory provisions. Subsequent performance does not include removal of the defective item or re-installation if BEWITAL agri was not originally obliged to install it.

8. BEWITAL agri shall bear or reimburse the expenses required for inspection and subsequent performance, in particular transport, travel, labour and material costs as well as, where applicable, removal and installation costs, in accordance with statutory provisions if a defect actually exists. Otherwise, BEWITAL agri may demand reimbursement from the buyer for the costs incurred as a result of the unjustified request to remedy defects (in particular inspection and transport costs), unless the absence of a defect was not recognisable to the buyer.

9. In urgent cases, e.g. where operational safety is at risk or to avert disproportionate damage, the buyer has the right to remedy the defect itself and to demand reimbursement from BEWITAL agri for the objectively necessary expenses incurred. BEWITAL agri must be notified of such self-remedy without undue delay, if possible in advance. The right of self-remedy does not apply if BEWITAL agri would be entitled to refuse corresponding subsequent performance under statutory provisions.

10. If subsequent performance has failed or an appropriate deadline to be set by the buyer for subsequent performance has expired without success, or is dispensable under statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the case of an insignificant defect.

11. Claims by the buyer for damages or reimbursement of futile expenses exist, even in the case of defects, only in accordance with Section 8 and are otherwise excluded.

Section 8 Other Liability

1. Unless otherwise stated in these GTC, including the following provisions, BEWITAL agri shall be liable for breaches of contractual and non-contractual obligations in accordance with statutory provisions.

2. BEWITAL agri shall be liable for damages – regardless of the legal basis – within the scope of fault-based liability in cases of intent and gross negligence. In cases of simple negligence, BEWITAL agri shall be liable, subject to statutory limitations of liability (e.g. diligence in one’s own affairs; minor breach of duty), only

a) for damages resulting from injury to life, body or health,

b) for damages resulting from the breach of a material contractual obligation (an obligation whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance the contractual partner regularly relies and may rely); in this case, however, BEWITAL agri’s liability is limited to compensation for the foreseeable damage typically occurring.

3. The limitations of liability resulting from item 2 of this section also apply to breaches of duty by or in favour of persons for whose fault BEWITAL agri is responsible under statutory provisions. They do not apply if BEWITAL agri fraudulently concealed a defect or assumed a guarantee for the quality of the goods, or for claims by the buyer under the Product Liability Act.

4. In the event of a breach of duty that does not consist of a defect, the buyer may only withdraw from the contract or terminate it if BEWITAL agri is responsible for the breach of duty. A right of termination at the buyer’s discretion is excluded. Otherwise, the statutory requirements and legal consequences apply.

Section 9 Limitation Period

1. Deviating from Section 438 (1) no. 3 BGB, the general limitation period for claims arising from defects in quality and title is one year from delivery. Where acceptance has been agreed, the limitation period begins upon acceptance.

2. The above limitation period under sales law also applies to contractual and non-contractual claims for damages by the buyer that are based on a defect in the goods, unless application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in the individual case. However, claims for damages by the buyer pursuant to Section 8, item 2 sentence 1 and sentence 2(a), as well as under the Product Liability Act, shall become time-barred exclusively in accordance with the statutory limitation periods.

Section 10 Choice of Law, Place of Jurisdiction

1. These GTC and the contractual relationship between BEWITAL agri and the buyer are governed by the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).

2. If the buyer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered office of BEWITAL agri in Südlohn-Oeding. The same applies if the buyer is an entrepreneur within the meaning of Section 14 BGB. However, in all cases BEWITAL agri is also entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTC or at the buyer’s general place of jurisdiction. Mandatory statutory provisions, in particular on exclusive jurisdiction, remain unaffected.

As of October 2020