RUNGIS express AG  

General Terms and Conditions of Purchase 

1. General Information

Following General Terms and Conditions of Purchase are exclusively relevant for our business relationships with companies. Issuance of business terms which are different than those of the contract partner does not constitute a discrepancy to our General Terms and Conditions of Purchase. Upon execution of the order, the contract partner acknowledges exclusive validity of our General Terms and Conditions of Purchase. These terms also apply to later additional and subsequent orders.

Both contract partners agree to keep confidential our orders which were placed and contracts which were made and especially not to provide to a third party any information regarding the scope and/or form of the delivered good and objects, their composition and use without explicit consent by the respective other one. The same obligation applies to vicarious agents and agents. This does not apply in the case of official or court information requests in cases pursuant to the Product- Safety and Liability Act.

2. Quality

The contract partner agrees to deliver only commercial goods which meet the respective laws and regulations of the Federal Republic of Germany and the European Union, as well as the requirements in the product specifications.

Product specifications (customer requirement specifications) shall be signed by both contract parties and shall constitute part of the contract.

The contract partner agrees to verify at own cost through certificates or up-to-date certificates or qualified expert appraisals the legal conformity of the product to food regulations.

The contract partner is responsible that the package/presentation correspond to the regulations; otherwise any costs arising to RUNGIS express AG hereby shall be borne by the contract partner, as far as legally permissible.

Unless provided otherwise in writing, the contract products shall be presented as stipulated by us, always, however, with the required declaration.

Any reproduction costs for necessary creation or changes to drawings for the packaging material shall be borne by the contract partner. Requests for packaging or necessary new stipulations shall only be made after consultation with us.

Technical material, as for example packaging material, directly in contact with the product, as well non-food articles, must comply with the regulations of the European Union and the Federal Republic of Germany. The contract partner must verify this upon request by us through certificates and expert appraisals.

The following applies for ecologically/biologically food products: the contract partner must proof that he is registered pursuant to Section 8 paragraph 1 lit. a and be of VO (EEC) 2092/91, and subject to control procedure, as well as upon request identify the inspection point and report about the results of the inspection visits.

Supplier must provide information whether the food products are subject to VO (EEC) No. 1829/2003 or whether they contain allergens or gluten or whether they were treated with radiation and if necessary upon our request the harmlessness must be proven.

3. Terms of Delivery

The registration of the Green-Dot (Grüner Punkt) system shall take place by the contract partner.

In general the travel and transportation temperature is the optimal storage temperature of a good which should be strived for in order to achieve maximal storage ability. The knowledge of the optimal temperature depending on the good is expected; in case of lack of knowledge such information can be requested at RUNGIS express AG. These temperatures may not be fallen below nor exceeded.

The contract partner warrants in case of delivery of frozen goods and ice cream to uninterruptedly store, transport and deliver under observance of the valid laws and regulations especially at the minimum temperature of -18°C. Any valid concern that the good has not been sufficiently and uninterruptedly stored, shall entitle to a rejection of acceptance.

The burden of proof for the uninterrupted observance of any minimum temperature until acceptance of the good by us lies with the contract partner, even in case of acceptance by us. Any damages resulting from non-observance of the freezing chain shall be borne by the supplier.

The contract partner is obligated to prove within a week through an official sworn expert that he has uninterruptedly observed the minimum temperature in storage and transportation in the case that the good has been denied by us on the grounds of the above issue. Such assessment shall be decisive; the costs of the appraisal shall be borne by the parties analogously to the application of Section 91 Act on Civil Procedure (ZPO), if necessary proportionally.

Goods which are to be delivered on pallets must be delivered on faultless and exchangeable Euro pallets. Other pallets as well as larger or damaged pallets we shall charge to supplier at a replacement price.

Supplier must ensure that the goods have the transportation labels in German with EAN Code 13-17, as of January 2008 with EAN 128.

The delivery date agreed on is a fixed date pursuant to Section 375 Commercial Code (HGB). If the observance of the fixed delivery date and/or delivery possibility is in question—regardless of his obligation for delivery at the stated date—he must inform in writing or by fax immediately. The information is also necessary in the case of force majeure. The information regarding non-observance of the delivery date is needed for our internal disposition, especially with regard to the other purchases pursuant to Section 376 HGB.

If on the side of the contract partner there are delivery cancellations or delays of the entire or partial deliveries, then we shall be entitled to invoice the contract partner a penalty in the amount of 10 % of the order amount, or as assessed by court, the part of the delivery affected by the cancellation or the delay. Any additional claims for damages shall not be affected hereby. Contract partner’s responsibility is to be expected. It is the contract partner’s responsibility to prove that he is not responsible for the cancellation or delay in delivery.

The contract partner obliges himself to send invoices never open, nor together with the delivery, to the addresses indicated by us. Thereby he must indicate our order number, article number and unit amount. Delivery notes, freight paper or invoices must be edited in German, in English or in French.

If there is no indication of our order number to be found on the delivery note, we are entitled to bring in charge € 50,00 for each such delivery note for additional expenditures of our administration.

Our payments shall take place within the agreed payment periods. Unless a payment period has been agreed on, payments shall take place within 30 days net. The payment period shall begin at the earliest upon receipt of the invoice, however not before receipt of the ordered good.

4. Defects

The contract partner shall provide to us the ordered goods free of any defects and defects of title. A defect is also a deviation from the specification of the good agreed on between the parties. In case of obvious defects which can be detected without any lab inspection we are obligated to fax to the contract partner a reproof within 48 hours of delivery. Sundays and holidays as well as Saturdays do not count in the calculation of the 48 hours. We are entitled to also reproof at a later date—without loosing any further rights—if such defect has only been detected later by us or other acceptors or during food inspections and the defects are not obvious.

Reproofs also count as delivered on time if we send the reproof to the contract partner immediately upon receipt of the reclamation by a customer or a food inspection and the defect was not obvious.

Relevant for the determination of the quality of the delivered good are samples taken by us. If they show defects then it is expected that the entire shipment has defects. In that case we are entitled to return the entire shipment and/or assert the contractual and legal claims due to a defected shipment of goods. Limitations to liability or their exclusions by the contract partner do not apply.

It is left to the contract partner to prove that the goods or parts thereof are not defective.

If we reclaim the goods or parts of the goods, refuse to accept or return already accepted goods, the contract partner shall be liable—regardless of the reproof—to remove all labels in case of resale and to provide us proof hereto upon request. In case of a breach of the above provision the contract partner shall be entitled to pay a fine to us at our discretion, which the local regional court can verify.

In case of non- or bad compliance by the contract partner we shall be entitled to the legal provisions, especially pursuant to the Commercial Code (HGB) and to the Civil Code (BGB). No liability limitation or exclusions of the contract partner apply.

Food which has obvious defects upon delivery bearing danger of causing health problems or contamination of other food can be thrown away by us upon notice at the cost of the supplier. We reserve the right to further claims for damages.

If parties cannot agree on the existence of a defect within one week since delivery by us—with the exception of a reproval for non compliance to minimum temperature which has been regulated exclusively in Item II of these terms—then a neutral expert shall be elected as arbitrator. His judgment shall be relevant for both parties; the costs for the expert appraisal shall be borne by the parties’ prorated and analogue to the application of Section 92 ZPO.

If the contract partner does not object explicitly to our suggestion of an arbitrator, we shall be entitled to elect the arbitrator on our own. It must be an official and sworn expert or an expert employed at a governmental health office.

If the contract partner objects to our proposal then the Chamber of Commerce located at the place of office of RUNGIS express AG shall elect the expert appraiser upon request by one of both parties bindingly.

After establishment that the sample is good, the parties shall reach an agreement regarding the price regarding the expected delivery amount. A specific description for the recipe, the sensory, and the labeling of the food (customer requirement specification) – product specification – shall take place.

The contract partner agrees to deliver to us the agreed products at the agreed prices. The agreed prices and terms also apply to re-ordering and/or call-off of goods without any particular specification. The contract partner shall not be entitled to increase his price after closing of contract.

The agreed prices are to be seen including customs and taxes, without VAT, free delivery to the warehouse of our choice (including the packaging and carton declaration, and placed on palettes).

6. Retention of Title

We shall be entitled to resell goods which are under retention of title in regular business transactions.

7. Food-Safety Clause

The cooperation with our supplier in case of objections in food-safety, weights and measure regulations, product liability, and product safety cases, especially of official nature, shall be regulated as follows.

We shall inform the supplier regarding all details.

We attempt to provide to the supplier a possible official counter/second probe for inspection by an expert of his choice, providing the main content of the official suspicion and the official inspecting criteria.

We shall not give the food-safety officials any information regarding the subject matter, unless in accordance with our supplier and our legal counsel and based on his recommendation.

If the supplier as well is being investigated in connection with a product of our supplier, supplier shall instruct our appointed legal counsel to work closely with our legal expert.

In any event supplier shall provide us a complete documentation regarding the terms of manufacture / storage / transportation until transfer of danger in case of any complains regarding the good shipped by him. This shall serve as joint assessment of the scope of the respective liability in the specific case.

Supplier shall warrant that we shall be entitled to perform representative probes and inspections by official experts assigned by us for the joint assessment and response to the question as to who is responsible for the claim.

In case of any verbal or written official stop of sale, prohibition of sale, prohibition of export or even silent or public recall including the official warning, we shall execute our measures of defense in accordance with the supplier.

We shall charge to you any arising costs regarding the complaints of your good.

8. Miscellaneous:

German law applies exclusively to the business relationships with our contract partners and the General Terms and Conditions of Purchase at hand. The German contract version applies exclusively. Aside from the order the contract partner acknowledges the choice of German law (Art. 3 of the Rome I Regulations). UN purchase law shall not apply, even if the the goods are delivered from another country.

Parties agree on Meckenheim and/or Bonn to be the place of fulfillment and venue for any liabilities or disputes resulting from the business relationship with the company.

Please sign and return via fax: ++ 49 2225883243, thank you!

Place …………………………………………

Date … ………………………………………

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