General terms and conditions

§ 1 Scope of application

(1) Miltitz Aromatics GmbH (MA) orders, authorizes and delivers exclusively on these general terms and conditions. The other party(ies) is/are subsequently called contracting party.
(2) Any deviations either of subsequent terms or the law – particular by other standard terms- shall not be effective unless approved in writing by MA. Unreserved delivery, service or accepted payment likewise unreserved payment shall not be applied as acceptance of deviations. Approved deviations shall only apply to a certain individual case and shall have no effect in future.

§ 2 Offers by MA

(1) Unless specifically authorized offers by MA are subject to change until acceptance within at most 10 calendar days.
(2) Unless otherwise agrred prices by MA are net-prices ex work. Prices shall not include cost of insurance, freight, fees, packaging, toll, VAT and other taxes and likewise auxiliary costs.

§ 3 Conclusion of contract

(1) Any conclusion of contract, as well as amendments, additions or the termination of contract by mutual agreement shall require text form. Unless confirmed in text form a contract shall be closed by delivery of goods by MA within the delivered quantity and quality or on basis of a commercial confirmation letter (written (as the case may be with marginal changes) confirmation of an orally accepted order with contractual effect).
(2) Commercial confirmation letter shall have effect if objections are not raised within 5 calendar days.
(3) The conclusion and subject terms of contract with MA must be treated confidentially. All commercial or technical details disclosed in the course of the business relationship which are not already in the public domain shall be treated as business secrets. Any employees and subcontractors must be subjected to corresponding obligations. The use of any information related to the contract for any other than contractual purpose as far as not ruled by law or authority shall require text form.

§ 4 Consingnment/performance to MA

(1) Goods and services to MA shall be effected by fixed prices. The contracting party must show statuatory VAT separately on its offers and invoices. Regardless the kind of performance MA accepts reservations of proprietary rights only by an overriding and legitimated security interest of contracting party.
(2) The contracting party shall be obliged to indicate VAT Reg.No., MA’s order no as well as all other order information (date, quantity, lot no., etc) as given in the order on all shipping documents, delivery notes and invoices. If the contracting party fails to do so, MA shall not be liable for any consequential delays in proceeding; the contractual party is liable for data beeing complete and correct.
(3) The risk of deterioration including accidental loss shall thus be borne by the contracting party until delivery to MA on the place of performance. Regardless of that goods shall be properly packed to avoid damages in transit.
(4) The contracting party shall be obliged to take back the packaging in accordance with legal provisions.
(5) No reminder shall be necessary in order to establish the status of “default“. Delivery period starts by expiration of the day on which the contracting party receives an order by MA.
(6) If the contracting party is in default due to any non-compliance with a date of delivery, MA shall be entitled to demand a contractual penalty amounting to 0.15 percent of the order value for every business day, however, not more than 5 percent of the order value. MA reserves the right to assert the contractual penalty until payment of the invoice. MA reserves the right to assert additional claims for damages; the contractual penalty must be set off against any claims for damages caused by the delay.
(7) MA shall not accept partial delivieries unless otherwise expressly agreed upon.

§ 5 Performance by MA

(1) If the parties agreed on a delivery period, such period shall begin as of the date of the order confirmation by MA.
(2) MA is not responsible for delay in delivery if it is caused by the contracting party. Goods shall be stored and stocked by MA on risk and cost of the contracting party.
(3) Unless specifically agreed, MA delivers commercial, specification-fairly goods of average kind and quality considering generally acknowledged rules of technology and science. If MA is not acknowledged of a specific intended purpose of delivered goods in text form, the common purpose shall be applicable, in particular for quality tests.
(4) To the extent the use of the products delivered by MA is subject to legal regulations, it shall be the contracting party’s responsibility to verify whether the delivered products are suitable for such use.
(5) MA shall not assign any intellectual property rights the contracting party with the sale of the products

§ 6 Terms of payment

(1) The contracting party’s invoices are due and payable within sixty (60) days upon delivery (the acceptance replaces delivery at contracts of work) and receipt of invoice. Payments without any reservation shall not be deemed as acceptance of quality and quantity.
(2) In case of any delay in payment, MA’s liability shall not exceed the statutory default interes rate.
(3) MA shall be entitled to rights tos et-off and retention rights in accordance with legal provisions. The contracting party shall only have rights of set-off and retention if its counterclaims have been legally established, are undisputed and recognized by MA, the contracting party may only exercise its right of retention to the extent its counterclaim is based on the same transaction.

§ 7 Retention of title

(1) MA reserves the right to retention of title to the delivered items until receipt of full payment for the respective delivery. The contracting party shall be entitled to resell, mix, blend or process the goods subject to retention of title in its ordinary course of business. Already now, the contracting party assigns to MA ist claims resulting from the resale of the goods subject to retention of title. If MA’s title to the goods extinguishes due to the goods being mixed or blended with other goods or due to being processed, the contracting party hereby assigns to MA in advance a pro rata co-owner’s share in the value of the new item being produced. MA hereby accepts such assignments. Physical transfer shall be replaced by gratuitous deposit.
(2) in case of any delay in payment on the part of the contracting party or if an application to subject the contracting party’s assets to insolvency proceedings has been filed or in case of an assignment of the contingent rights to third parties or if essential parts of the contracting party’s business to third parties, MA or a legitimated third party shall be irrevocably entitled to enter the contracting party’s premises on normal working hours for removal the delivered goods. MA shall then be entitled to freely dispose of such goods subject to a rentention of title; proceeds of sale less reasonable expenses reduce contractual party’s debts. The contracting party bears all expenses of unsuccessful executions with reasonable effort.
(3) Upon the contracting party’s request, MA undertakes to release any collateral securities to the extent the value if these collateral securities exceeds the value of the as of yet unfulfilled claims tob e secured by such collateral securities by more than 10 percent. MA shall be entitled to freely select the collateral securities to be so released.

§ 8 Warranty/Compensation

(1) In both performances , the delivery of products by, as well as towards MA , the delivered products are to be examined at random  with regard to differences in quality and quantity.  Notices of defect have to be considered as in due time if they have been sent to the contracting party  in accordance with the regulations and within seven working days  after the departure of the product, respectively  in evidently written form as of the discovery, in case of hidden defects. Afterwards, the product is regarded as approved.
(2) Quality and quantity of occasional products may be considered by MA as flawless, without examination.
(3) In case of performances by MA, the inspection duty is enlarged towards all intended purposes , independently of any knowledge by MA,  in respect to the latest state of art in science and technics. Notices of defect by the contracting party engage the latter to immediately make available in particular damaged product and its packing, for a prompt  examination of the  complaint by MA.
(4) In both the performances by and towards MA , Miltitz Aromatics makes the choice  between the remedy of defects and a flawless substitutional delivery. This
applies accordingly for plant output towards MA. After an unique, unsuccessful attempt of elimination, the remedy of defects by the contracting party are considered as failed,.
(5) Any liability by MA is restricted to cases of intentional and grossly negligent by MA, its executives and agents, with exception of:
a.  the violation of  a substantial duty (essential duty),
b.  the violation of life, body or health.
c. the liability by virtue of fraudulent withhold of information , of a material deficiency and/or deficiency in title or a guarantee of quality.
d. the cases of legal strict liability , especially on account of the lemon law.
(6) In cases of simple negligence, MA is only liable of the limited amount of the contractually typical, foreseeable damages.
Non-foreseeable are in particular damages caused or aggravated by violation of characteristic circumspection by the contracting party or caused by inadequate occasional products.
(7) Warranty claims against  MA become statute barred within one year. This does not apply for claims on compensatory damages according to paragraph 5. Basically, the legal limitation instructions remain valid.
(8) paragraph 5 to 7 apply accordingly, with direct use of  legal representatives and agents of MA.

§ 9 Communication, data protection

(1) MA is allowed to transport electronic messages or by telephone unencrypted. MA doesn’t guarantee confidentiality of transport and communication.
(2) MA is allowed to save and use all data legally obtained by any communication within the contractual relationship for all business relationship. MA safeguards all obtained information within its sphere of control as required by the Data Protection Act.
(3) The contracting party is prohibited to give a third party access to data obtained within the business relationship without prior consent in text form.

§ 10 Place of performance, place of jurisdiction, applicable law

(1) Except when otherwise stipulated the place of performance for all obligations arising from the contractual relationship shall be Bitterfeld-Wolfen.
(2) In the event of any legal dispute, the parties shall submit to the exclusive jurisdiction of the court responsible for the corporations’ headquarters, if no other court is legally exclusive.
(3) The contractual relationship shall be subject to German law. Application of the UNCITRAL sales convention (United Nations convention on the international sales of goods) shall be excluded.
(4) In the event of any conflict or contradiction between the German language version and the English language version, only the German language version shall be decisive/ legally valid.

As per 2014/6

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