Preamble

1. The following definitions are used hereafter in this document: Terms and Conditions shall mean these General Terms and Conditions of Sale and Supply. Seller shall mean AGRANA Sales & Marketing GmbH, a member of the AGRANA Group, as defined in a Sales Contract.Buyer shall mean the counterparty to the Seller in a Sales Contract. Goods shall mean all types of product sold by the Seller, including sugar, sweeteners, molasses, MelaMix, etc. Parties shall mean the Buyer and Seller collectively. Sales Contract shall mean an individual sales contract for a specified variety, quantity, and packaging of sugar and/or other Goods made by and between the Buyer and Seller. In writing shall mean communication by means of a document signed by both Parties or by letter, fax, electronic mail, or such other means as may be agreed by the Parties.
2. These Terms and Conditions are valid from 1 October 2019 until they are revoked and represent an integral element of every Sales Contract concluded between the Parties. These also apply analogously to services provided by the Seller. All previous Terms and Conditions shall hereby become invalid.
3. Through the receipt of these Terms and Conditions and as a result of placing an order, the Buyer accepts that all placed orders are filled solely on the basis of these Terms and Conditions. Any deviating terms and conditions on the part of the Buyer shall apply only if they have been accepted by the Seller in writing.
4. Any contradictory terms or conditions of sale or purchase on the part of the Buyer shall not apply and are declared invalid by mutual agreement even if these are not explicitly rejected by the Seller.
5. Obvious transmission, spelling, or calculation-based errors or other obvious errors relating to order confirmations or other declarations shall not be binding upon the Seller and can be rectified by the Seller at any time after entering into the relevant agreement.
6. All samples are provided as non-binding samples for inspection. Analysis data represent mean values and are intended solely as guidelines unless the Seller has explicitly provided assurance of certain properties in writing.

2. Prices and terms of payment

1. Unless otherwise agreed, net prices quoted by the Seller are expressed in euros (EUR or €). Quoted prices do not include VAT, which is charged according to relevant legislation.
2. Invoices shall be settled within 14 calendar days of the invoice issue date unless other agreements have been made between the Parties. Any (bank) charges associated with monetary transactions are to be borne by the Buyer.
3. In the case of bank transfers, the payment shall be considered as executed on the day when the relevant amount is credited to the Seller’s bank account.
4. In the event of a default in payment, the Seller shall be entitled to charge interest on arrears at a rate of 6% per annum and to demand the reimbursement of any dunning expenses.
5. In the event the Buyer owes debts to the Seller, irrespective of any adverse terms and conditions of the Buyer, the Seller reserves the right to set received payments first against the pre-existing debts of the Buyer. If additional costs and/or interest have already arisen, the Seller reserves the right to set off the payment first against the additional costs, then against the interest, and finally against the principal.
6. In the event of a decline in the creditworthiness of the Buyer (based on information regarding its asset position obtained by the Seller), negative changes in its legal position, the cessation of payments, unsuccessful debt collection efforts, non-compliance with the terms of payment, the opening of bankruptcy or judicial composition proceedings, the dismissal of any such application on the grounds of insufficient assets, or the existence of any other circumstances that impact the creditworthiness of the Buyer, the Seller shall be entitled, at its own discretion, to either collect unpaid Goods – whereby the Buyer will be obligated to surrender the Goods to the Seller within eight days of the transmission of a declaration by the Seller of its intention to collect the Goods – to demand a suitable guarantee, or to terminate the Sales Contract.
7. In the event that the settlement of the purchase price in instalments is agreed, the Seller shall be entitled to demand the immediate payment of all open receivables from the Buyer if one of the instalments has not been settled in the agreed time frame.
8. The Parties mutually agree that there shall be no offsetting of any counterclaims held by the Buyer against the Seller in the form of sales price instalments, a right of retention, or the withholding of payments on the grounds of warranty claims or other unrecognised claims asserted against the Seller.
9. In the event that the Buyer fails to comply with its commitments arising out of an agreement with the Seller, then the Seller shall be entitled, at any time, to reverse any cash discounts, other discounts, or credit notes previously granted or issued and to invoice these to the Buyer.

3. Ordering goods

1. An order confirmed by the Seller in writing shall be considered an order accepted by the Seller.
2. The Seller is entitled to refuse an order if a person who is not authorised in the Sales Contract to place orders on behalf of the Buyer places the order. The Buyer undertakes to update the list of persons authorised to place orders should the need arise.

4. Delivery and takeover of Goods

1. Goods are supplied by the Seller DAP (as defined per Incoterms 2010) unless otherwise agreed.
2. Shipments of unpackaged (bulk) Goods are, without exception and for quality assurance reasons, delivered by the Seller.
3. The quantity upon which invoicing is ultimately based shall be determined by the Seller.
4. In the case of bulk deliveries, the basis of the invoicing shall be the net weight measured on a calibrated scale at the loading site. Should the difference between the weights measured by the Seller and the Buyer – on scales with valid calibration – be more than 0.5% of the net weight measured by the Seller, the Buyer shall be entitled to ask for an inspection. In this case the Buyer shall submit the valid calibration documents of its own scale to the Seller in advance.
5. In the event that the Buyer collects the Goods itself, there is no price reduction or any other advantage unless otherwise agreed.
6. The Seller shall have the right to ship partial deliveries and to invoice for these, in which case the Buyer shall have no right to withdraw from the agreement.
7. Additional costs due to express deliveries requested by the Buyer shall be borne entirely by the Buyer.
8. The Seller shall hand over the Goods specified in the Sales Contract to the Buyer with the quality stipulated by and in accordance with the product specifications concerned.
9. The Buyer shall ensure that the delivered Goods can be unloaded appropriately and without any delay. In the event of a delay in the takeover of Goods for which the Buyer is responsible, the Buyer must reimburse the Seller all additional expenses incurred due to the delay. Especially in the event of the unloading of railway or road tankers taking longer than 120 minutes as a result of circumstances for which the Buyer is responsible, the Seller is entitled to charge an amount of €20 for each additional waiting hour begun.
10. In the case of bulk deliveries, the Buyer shall provide the necessary technical equipment for unloading the Goods. If a truck with a compressor or pump is required for unloading the Goods at the site of the Buyer, the Buyer shall inform the Seller of this fact in advance.
11. In the event of delayed performance on the part of the Seller or the inability of the Seller to meet its obligations for reasons within control, claims for compensation asserted by the Buyer shall be excluded insofar as the delay or failure to perform is not the result of ill intent or gross negligence on the part of the Seller, its legal representatives, or vicarious agents of the Seller.
12. In the case of Goods delivered on returnable pallets, the Buyer is obliged to return these pallets in the same quantity and with appropriate quality (see Annex 1 to these Terms and Conditions) either via the carrier of the Goods immediately after delivery or subsequently based on individual agreements between the Seller and the Buyer. Pallets that do not meet the quality requirements in accordance with the Annex 1 will not be taken over by the Seller’s contractual forwarder and will not be recognised as returned. If the Buyer does not return the pallets or returns pallets only to a limited extent, the Seller shall be entitled to charge the Buyer for the replacement of each unreturned pallet at a net price of €8 for each wooden Euro (EUR) pallet and €50 for each plastic (DD) pallet.
13. The Seller shall deliver the product in packaging suitable for the preservation of the Goods. The Buyer shall take over the Goods according to the number of pieces and shall simultaneously check the integrity of the packaging units.
14. If the Buyer detects quantitative or qualitative discrepancies or damages during the receipt of the Goods, it shall prepare a written record on the incident confirmed by the delivery driver and submit said record within 3 working days to the Seller. The basis of the complaint shall exclusively be the signed and stamped record.

5. Warranty

1. The Buyer shall be obliged to inform the Seller within 3 working days after the discovery of non-conformity of the Goods that could not be perceived during the takeover of Goods (e.g. contamination found during processing). In this case, the Buyer shall justify that the non-conformity has not been caused by it and shall allow the Seller to perform an audit, including taking samples on the premises of the Buyer.
2. The Buyer's right to claim for warranty, damages, or expenses shall expire within 1 year from the date of delivery. If the Goods in question have a shelf life of less than 1 year, the warranty obligation corresponds with the shelf life concerned. These periods are also valid for ‘hidden defects’.
3. In the event of warranty claims, the Seller shall, within a reasonable period of time, undertake a free-of-charge exchange of the Goods found to be defective. The Seller shall, however, at its discretion, have the option of arranging for the improvement (reworking) of the Goods or of supplying any missing quantities. If it is not possible for the Seller to fulfil its warranty obligations in this manner or if doing so would be associated with disproportionately high costs, the Seller shall be entitled to offer a price reduction for the defective Goods.
4. In the event of disputes, the Seller shall decide on the acceptance or refusal of the complaint based on an analysis performed by an independent, accredited laboratory that has been mutually accepted by the Parties. Should a complaint be found to be justified, the costs of the investigation shall be borne by the Seller. In other cases, the costs of the investigation shall be borne by the Buyer.
5. A defect that affects only a small part of the delivery does not entitle the Buyer to withdraw from the contract with regard to the entire delivery.
6. In the event that delivered Goods are returned by the Buyer to the Seller or one of the Seller’s production plants without explicit agreement from the Seller, this shall not serve as grounds for compensatory claims and the Buyer shall bear all of the resulting costs.
7. Warranty claims shall not be entertained if:

• Obvious deficiencies are not notified within 3 working days upon receipt of the Goods, or
• The defective Goods are modified by the Buyer itself or a third party.

8. With regard to the suitability of the Goods, the Seller shall only be liable under warranty in the event that it has provided written instructions for the use of the Goods in question and it can be established that these instructions had been followed.

6. Sugar quality analyses

1. In the event of disputes, sugar quality analyses shall be carried out according to the ICUMSA methods in force (see table below).

7. Retention of title

1. Prior to the complete settlement of all receivables held by the Seller arising out of the business relationship with the Buyer, including costs, interest, and interest on arrears, the Goods supplied shall remain the property of the Seller. This shall also apply in the event that some or all the receivables of the Seller have been included in a statement of account. In this case, the retention of title shall serve as collateral for the demand for the balance asserted by the Seller.
2. The Buyer commits to appropriately handle and store the delivered Goods. The Buyer shall be liable for damage of all kinds as well as losses, regardless of how these are incurred. Moreover, the Buyer shall be required to adequately insure the Goods against all cases of force majeure for the duration of the retention of title period. The rights and claims held by the Buyer arising out of this insurance cover are to be assigned to the Seller without the latter having to specifically request this. The Buyer shall also be required to voluntarily provide the Seller with evidence of the acceptance of the irrevocable assignment thereof on the part of the insurer.
3. In the event of resale, the Buyer shall assign the Seller all primary and secondary rights and guarantees arising out of the resale or processing of the Goods purchased by the Buyer vis-à-vis its customers until such time as all claims held and asserted by the Seller against the Buyer have been satisfied, namely in an amount equivalent to the open invoices of the Seller plus an additional 10%. In cases of the combination or mixing of Goods subject to retention of title with other Goods, the Seller shall hold co-ownership rights to the resulting product in proportion to the value of the Goods subject to retention of title relative to the other Goods at the point in time of the combination or mixing. If the resulting asset(s) are subsequently sold, the Buyer shall, analogous to the preceding condition, assign to the Seller the relative portion of the purchase price obtained through the resale. In the event that the Goods subject to retention of title are processed under a contract for work such that a third party obtains ownership, then the Buyer shall, analogous to the preceding provisions, assign its claims to the relative share of the fee to the Seller. All assignments shall be in the form of collateral.
4. Subject to revocation at any time, the Buyer is entitled to demand the assertion of the assigned receivable against its customers on behalf of the Seller, provided that the Buyer meets its payment obligations vis-à-vis the Seller. At the request of the Seller, the Buyer shall be obligated to undertake all reasonable measures in order to assert the rights of the Seller vis-à-vis its customers.
5. An attachment, assignment of collateral, or other restriction in favour of a third party relating to the Goods subject to the rights of retention of title held by the Seller is explicitly prohibited. The Buyer shall be obliged to oppose any claims asserted by third parties pertaining to the property of the Seller and shall be liable for all losses and costs incurred as a result of such claims by a third party.

8. Exclusion of liability

1. The Seller shall not be liable for any losses or damages resulting from gross or minor negligence, regardless of whether such losses or damages are attributable to behaviour in violation of the Sales Contract or improper in nature, including liability for indirect losses, also vis-á-vis third parties, insofar as is legally permissible. Similarly, liability for consequential losses, irrespective of their nature, shall be excluded insofar as is legally permissible. The liability of the Seller shall in any case be limited to an amount equivalent to the value of the Goods concerned.

9. Indemnification

1. If the Parties agree on fixed volumes and prices for a definite period in the Sales Contract, the Buyer shall order and take over the total contracted volume of the Goods during the contractual period and pay the value of the Goods to the Seller in due time. The Seller shall deliver the total contracted volume of the Goods to the Buyer during the contractual period unless the Seller is exempted from the fulfilment of the contract due to any breach of agreement by the Buyer. If the Buyer does not order and take over the total contracted volume during the validity of the Sales Contract and the Parties do not agree on the arrangement of the open volumes, the Seller shall be entitled (but not obliged) to store the Goods at the expense of the Buyer.

10.Data protection

1. Parties shall process personal data in accordance with the applicable legal provisions for the protection of personal data and data security. Parties shall be entitled to store and process all data necessary for the execution of the contractual relationship, including personal data. Parties are not allowed to disclose any information that may have come into their possession during the business relationship or after the full execution of any Sales Contracts. The Parties shall take all necessary measures to impose similar obligations of confidentiality on persons active on behalf of them during the execution of Sales Contract. With respect to the Seller, the confidentiality requirement does not apply to information shared with any companies within the AGRANA Group in Austria or abroad. Find more information via this link: https://www.agrana.com/gdpr/en/

11. Termination

1. The Seller is entitled to terminate the Sales Contract with immediate effect if the Buyer falls more than 15 days behind on any payment obligations as calculated from the due date.
2. In the event of termination, the Seller shall have the option, at its own discretion, either to demand compensation or to demand a contractual penalty in the amount of 20% of the agreed sales price, whereby this contractual penalty shall not be subject to judicial reduction or abatement. All costs associated with such proceedings shall be borne by the Buyer.

12. Force majeure

1. Neither the Buyer nor the Seller shall be liable for failure to perform or for inadequate performance of the Sales Contract if such failure to perform or inadequate performance is caused by an unavoidable and unforeseeable event beyond either Party’s control and impossible to avoid despite taking appropriate measures (‘force majeure’). This includes but is not limited to war, sabotage, upheaval or other acts of public unrest, catastrophes, fires, explosions, flooding, storms or other natural calamities, or a lack of labour force, fuel, raw materials, or equipment.
2. The affected Party shall notify the other Party within a reasonable time frame and shall make reasonable efforts to reduce the duration and negative impact of a force majeure event. The agreed delivery period or delivery time shall be prolonged appropriately if the originally agreed schedule cannot be adhered to due to the force majeure event. If the force majeure event continues for a period of 30 days or longer, both Parties shall have the right to terminate the Sales Contract without asserting any legal claims against the other Party.
3. An economic slowdown, market collapse, change of overall business conditions, or other similar business event shall not be considered force majeure.

13. Jurisdiction

1. The place of jurisdiction for any and all legal disputes between Seller and Buyer directly or indirectly related to the Sales Contract, regardless of their nature or origin, shall be the Commercial Court in Vienna (Handelsgericht Wien).
2. However, at the Seller’s discretion such cases may also be referred to the competent court in the jurisdiction in which the Buyer has its registered premises.

14. Applicable law

1. Unless another agreement has been made between the Parties, Austrian law is hereby agreed to be applied to all contractual relations as well as any resulting legal disputes. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

15. Amendments

1. No amendments to these Terms and Conditions shall be valid unless they are executed in a written annex and signed by authorised persons on behalf of each of the Parties.

16. Final provision

1. These Terms and Conditions have been drawn up in English and in the applicable local language(s). In the event of a dispute, the English version shall prevail.

In Vienna, September 2019.

ANNEX 1

With reference to Point 4 (12) regarding pallet management
The purpose of this Annex is to determine the quality requirements for wooden Euro (EUR) pallets and plastic (DD) pallets supplied by the Seller and returned by the Buyer.

The contracting carrier of the Seller is obliged (in the terms of the contract of carriage) to take from the Buyer only those pallets that meet all the requirements below.

The Buyer is obliged to return only those pallets that meet the following quality requirements:

1. Pallet dimensions

• standard wooden Euro (EUR) pallet (1200 mm × 800 mm × 150 mm)
• plastic DD pallet (600 mm × 800 mm × 155 mm)

Any other non-standard pallets are not accepted.

2. Standard wooden brands – ‘EUR’ or ‘EPAL’.

3. Pallet quality – Pallets shall meet EPAL standards; pallet boards, corners, etc. shall be complete and in good shape, and if any element of the pallet is broken, cracked, rotten, or ragged, the pallet will be rejected.

4. Pallet cleanliness shall meet food-grade standards – The surface of the boards of each pallet shall be clean and free of any contamination such as oil, paint, or any other impurities or absorbent substances.

5. Moisture content – The pallets shall be dry and ready for immediate use; the moisture content shall be less than 22%. Visibly wet pallets or pallets soaked with water or other liquids will be rejected.

6. Safety: Fasteners – Nails shall not protrude from the pallet because in so doing they could jeopardise the safety of workers during handling and/or damage product packaging.