Standard Terms and Conditions of Sale

1. Scope

The terms and conditions below apply to this order and to
all future transactions with the customer. We will only be
bound by conflicting or inconsistent terms and conditions of
the customer, e.g. in order forms, order confirmations etc, if
we expressly acknowledge such terms and conditions in
writing. Our terms and conditions will apply even if we
render delivery without reservation despite knowing of
conflicting or inconsistent terms and conditions of the
customer.

2. Written form requirement

Any oral representations, supplementary or collateral
agreements, and terms relating to quality/condition or
warranties must be confirmed in writing in order to be valid.

3. Offers and quotes

Offers are subject to change and our quotes are not
binding. We are not obliged to deliver goods merely by
virtue of sending our price lists, catalogues, brochures, etc.

4. Delivery periods and dates, default, impossibility

Delivery periods and dates are not binding unless they are
explicitly stipulated in writing as binding. We are entitled to
make part-delivery. The delivery period will be deemed
complied with if upon its expiry we have issued the relevant
shipment order or notified the customer of our readiness
for shipment. The delivery period will be extended
accordingly if the customer subsequently requests
modifications. In any event, periods will not commence to
run until the customer has fully performed all required acts
of cooperation and any agreed advance payment has been
received. If we are in default, or our obligation to perform is
excluded for reasons we are responsible for, or we are
entitled to refuse to perform under § 275 (2) or (3) German
Civil Code (Bürgerliches Gesetzbuch, or «BGB»), then the
customer may claim compensatory damages, but only
pursuant to the terms of section 11. In any event, the
customer must grant us a reasonable grace period, usually
at least 3 weeks, before exercising its rights (compensatory
damages, rescission of agreement). If the customer is in
default of acceptance or breaches other duties to
cooperate, then we may claim compensation for any loss
or damage sustained by us, including any additional
expenses.

5. Execution of order

Unless expressly agreed otherwise, the goods for delivery
need only demonstrate the qualities, specifications etc,
expressly stipulated in the relevant agreement. Such
qualities and specifications will only be deemed subject to
warranty if we expressly declare our intention to assume
liability for them, regardless of fault, or if such qualities and
specifications are explicitly described as such by us. We
reserve the right to deviate to a reasonable extent from
descriptions and details in our brochures, catalogues or
similar sales documentation, and replace components with
better components or components of equivalent value,
without this giving rise to any rights against us on the part
of the customer. Such descriptions and details as well as
representations made in advertising do not constitute
warranties.
The customer must notify us of all facts relevant to the
execution of our delivery. We are not obliged to check the
completeness and accuracy of the data, information or
other work provided by the customer, unless the individual
circumstances of the particular case suggest that such
data or information should be checked.

6. Force majeure and other impediments to performance

In the event of force majeure and other impediments to our
performance or that of our suppliers for which we are not
responsible, including but not limited to traffic and
operational disruptions, a shortage of materials or energy
and strikes or lock-outs, we will be entitled to delay delivery
for the duration of the impediment to performance. We will
notify the customer without undue delay of the inability to
deliver. If performance becomes impossible as a result of
an event outside our control, we will be entitled to rescind
the agreement.

7. Prices

Deliveries will be invoiced at the prices applicable on the
date of delivery. Unless expressly agreed otherwise, prices
are agreed ex-works, including packaging, and do not
include VAT. We reserve the right to demand reasonable
instalments and advance payments.

8. Shipment and transfer of risk

Unless expressly agreed otherwise, shipment will be exworks at the customer’s risk and expense. Unless
elsewhere defined, the place of delivery will be at our
discretion. If shipment is delayed through no fault on our
part because the customer has agreed to collect the
goods, then the risk that the goods will be lost or
destroyed will pass to the customer on the date upon
which we make the goods ready for shipment.
Consignments bearing signs of damage upon arrival
may only be accepted subject to reservation.
Arrangements must be made for the freight company to
assess the damage.

9. Payment Conditions

Payments must be made within 30 days of the invoice
date. If payment deadlines are exceeded, we may
charge interest at a rate that is 8 percentage points
higher than the base interest rate.
If after execution of the agreement we become aware of
circumstances suggesting that the customer may be
unable to perform, thus jeopardising our claims, we may
demand advance payments or security. If the customer
defaults on any payment, all of our claims will become
due and payable immediately in cash, notwithstanding
any time for payment allowed. The foregoing applies
even if we have accepted cheques. In any of the above
cases, we will be entitled to refuse to make deliveries
not already executed or make them contingent upon
payment of an advance or the furnishing of security, and
for this purpose we will be entitled to set a reasonable
grace period and rescind the agreement and/or demand
compensatory damages if such grace period expires
without result.

10. Complaints and claims based on defects

Complaints based on incomplete or incorrect deliveries
or apparent defects must be made without undue delay,
but no later than 2 working days after receipt of the
goods. Any other defects must be notified without delay,
but no later than 2 working days after they are
discovered. All complaints must be lodged in writing
specifying the invoice and delivery note number. In the
case of legitimate and timely complaints, we will rectify
the defects by delivering replacement goods. If the
defect cannot ultimately be rectified by replacement
goods, then the customer may, at its election, demand a
reduction of the contract price or rescind the agreement.
The customer is precluded from making any further
claims. The customer may claim compensatory
damages only in accordance with section 11. We
assume no liability for defects if the customer or a third
party modifies the goods delivered by us. We will not be
liable for loss or damage attributable to improper use or
incorrect handling, etc.

11. Liability

We will be liable for compensatory damages only in
accordance with the following provisions:
In relation to liability on the merits of any claim, we will
only be liable (i) for wilful or grossly negligent conduct;
(ii) for any negligent breach of a principal contractual
duty (wesentliche Vertragspflicht); (iii) pursuant to
warranties as to condition or quality; (iv) for default; and
(v) in cases where the obligation to perform is excluded
for reasons for which we are responsible or we are
entitled to refuse to perform (§ 275 BGB).
If our liability under the above provisions is based on
ordinary negligence (einfache Fahrlässigkeit), the
quantum of our liability will be limited to damages for
contractually typical and foreseeable loss. Any further
liability for property damage and pecuniary loss in cases
of ordinary negligence is precluded. The above liability
provisions will not affect liability for damage resulting
from injury to life, limb or health. Where our liability to
pay compensatory damages is excluded or limited in
accordance with the above provisions, such exclusion
or limitation will also apply with respect to the personal
liability of our governing bodies, employees and other
workers, representatives and vicarious agents, and will
also apply with respect to all claims based on tortious
conduct (§ 823 BGB), but not to claims under §§ 1 and
4 of the German Product Liability Act
(Produkthaftungsgesetz).

12. Statute of Limitations

Claims based on defects will become statute-barred one
year after commencement of the statutory limitation
period. The foregoing does not apply to defects for
which the statutory limitation period is 5 years or more.
Other contractual claims on the part of the customer
based on breach of duty will also become statute-barred
one year after the commencement of the statutory
limitation period. The above provisions do not affect the
statutory limitation period applicable to: (i) loss or
damage resulting from injury to life, limb or health; (ii)
other loss or damage caused by a wilful or grossly
negligent breach of duty by us, our representatives by
operation of law or vicarious agents; (iii) the customer’s
right to withdraw from the agreement based on a breach
of duty for which we are responsible which does not
involve a defect inherent in the goods sold; (iv) claims
based on fraudulent non-disclosure of a defect or
warranties as to condition or quality (§ 444 BGB); (v)
claims for reimbursement of expenses as defined in §
478 (2) BGB.

13. Retention of title

Goods delivered by us remain our property until all of
the customer’s liabilities in connection with the
commercial relationship have been settled in full. We
must be notified in writing without undue delay of any
writs of attachment or other third-party rights that may
jeopardise our rights. Such notification must include all
details that we require in order to bring an action in
opposition to execution of the relevant judgment
(«intervening action») in accordance with § 771 of the
German Code of Civil Procedure (Zivilprozeßordnung,
or «ZPO»). Any processing or remodelling of our goods
by the customer will be exclusively on our behalf.
Where our goods are processed with other goods not
belonging to us, we will be entitled to co-ownership of
the new product, with our interest being proportionate to
the ratio of the cost price (calculated at the time of
processing) of the other processed goods and the value
of our goods as represented by the invoice amount of
our goods subject to the retention of title («retained
goods»). The provisions relating to retained goods will
otherwise apply mutatis mutandis to the new goods.
The customer will hold sole or co-ownership rights on
our behalf. The customer is authorised to resell our
retained goods in the ordinary course of business,
provided that he is not in default with his payment
obligations to us and there is no prohibition on
assignment in force between the customer and its own
customers. The customer will assign to us in advance
all claims (invoice amount including VAT) arising in this
regard against third parties (including any claims in tort
or claims under insurance policies), even if disposal of
the goods was prohibited under the above restrictions. If
we are deemed merely co-owners of the retained
goods, then the advance assignment will be limited to
the portion of the claim that corresponds with our coownership right based on the invoice amount.
Notwithstanding this assignment, the customer will
remain entitled to recover claims. Upon request, the
customer must notify us of all assigned claims together
with details of the relevant debtors and provide us with
all information and documentation necessary to recover
the claims. Upon our special request, the customer
must notify the third party debtors concerned that the
relevant claim has been assigned to us. The foregoing
assignment provisions also apply to processed and
remodelled retained goods. We agree to release
security at the customer’s request if the realisable value
of such security consistently exceeds the value of the
secured claims by more than 10%. In the case of
retained goods, the realisable value will be the
estimated value minus one third, and in the case of
claims assigned by way of security, the realisable value
will be the nominal value minus one third.

14. Place of performance, choice of law, judicial forum

The place of performance and judicial forum for all
disputes arising in connection with our contractual
relationship is Stade. We are however entitled to sue
the customer before any other court of competent
jurisdiction. These standard terms and conditions are
governed exclusively by the laws of the Federal
Republic of Germany; however the UN Convention on
the International Sale of Goods does not apply.

15. Confidentiality and privacy

Where either party obtains knowledge of confidential
information about the other party in the course of their
commercial relationship (particularly technical and
trade/business matters), such party shall treat this
information as confidential. This duty of confidentiality
will survive the termination of the commercial
relationship between us and the customer. To the
extent appropriate to the order, we are authorised to
process or arrange for third parties to process data
about the customer in accordance with the applicable
privacy law provisions. We are entitled to incorporate
the customer’s name in a list of customer references.
We will consult him in advance in relation to all other
references to him.

16. Miscellaneous

If any of the above terms are or become invalid, this will
not affect the validity of the remaining terms. Any invalid
terms will be replaced by terms that most closely reflect the
commercial purpose of the agreement, having regard to
the adequate protection of both parties’ interests.
The customer is not permitted to assign claims against us
which arise from the business relationship.
These terms and conditions supersede all of our previous
standard terms and conditions of sale, delivery and
payment.
Paradise Fruits Solutions GmbH & Co. KG
Asseler Str. 110, 21706 Drochtersen