ERBSLÖH Geisenheim AG
Status from: 07/2017

I General information – Scope – Warning

and performance by Erbslöh shall be executed solely in accordance with
the following General Terms and Conditions. These General Terms and
Conditions shall apply to transactions conducted with businessmen and
entrepreneurs in compliance with § 14 BGB (German Civil Code). These
General Terms and Conditions shall apply to all future transactions
between the partners to the agreement, without specialized further
reference. They shall also apply to future agreements even if Erbslöh
does not explicitly quote the terms, in particular when Erbslöh has
knowledge of alternative terms of purchase or of terms deviating from
the General Terms and Conditions of the customer’s deliveries or

II Tenders and Conclusion of Agreement – Performance

Erbslöh’s tenders to the prospective customer shall be subject to
confirmation. The placing of an order by the customer shall be binding.
The acceptance of such order will follow within four (4) weeks of
sending the order by means of the dispatching of a confirmation of order
or an unconditional execution of the consigned deliveries or
2. The technical data and descriptions in the respective
product information or advertising material from Erbslöh shall not
present a guarantee for the quality or durability of goods or
performance delivered or supplied by Erbslöh. Warranties will not be
furnished unless these have been explicitly agreed upon in separate
3. In connection with the above mentioned Paragraph 2,
Erbslöh draws the attention in particular to the fact that Erbslöh gives
all information related to the origin, state, nature, condition,
quality and the manufacturing process of the primary product and
merchandises to its best knowledge. In this context, Erbslöh is mostly
depending and relying on the information, promises, assurances,
confirmations and certificates provided by its suppliers. Erbslöh at its
stage of production is not able to conduct extensive product testing
with all products. As for these reasons it is not possible to trace back
in every single case. Erbslöh denies all liability in that respect.
In the case of sales in accordance with samples or specimens, this
shall merely describe the professional compliance with the sample or
specimen, but shall not be a guarantee for the composition or durability
of the goods to be delivered by Erbslöh or the performance to be

III Prices – Terms of payment – Default of payment

The EURO prices are determined at the time of the conclusion of the
respective agreement, in particular the prices defined in the order form
res. the confirmation of order. If a price is not explicitly defined,
the prices which are valid at the time when the agreement is concluded
in accordance with the current Erbslöh price list should be valid. The
statutory value-added tax valid on the day of delivery shall be added to
the defined prices.
2. The products shall be delivered ex factory.
The prices shall include the costs for the packaging required for the
regular shipment of the goods. The prices do not include the transport
costs and/or the costs for a transport insurance policy, if this has not
been previously agreed upon in an individual written agreement or if
these costs are not shown in the actual price list of Erbslöh. The terms
of packaging and transport must be concluded separately for goods to be
delivered abroad.
3. Erbslöh shall reserve the right to modify
prices in a reasonable manner if alterations in costs due to wage
settlements, price increases of suppliers or fluctuations in the
monetary exchange rates should arise after the conclusion of the
4. Invoices received from Erbslöh must be paid within
fourteen (14) days from receipt of the invoice minus two (2) percent
discount or within 30 days net, if no other terms have been concluded.
The customer shall be in default of payment after the expiry of the
settlement date stated in the invoice in compliance with § 286 Section 2
No. 2 BGB. Default interest in compliance with § 288 BGB will be
calculated from the day of expiry of the settlement date with
reservation to assertion of further claims. Invoices shall generally be sent
in electronic form as PDF files. Only upon explicit request invoices shall be
provided by mail.
5. The customer may only
exercise the option of offsetting or retention if his counter-claims
have been legally justified, uncontested or approved, unless they are
counter-claims from the same contract.
6. If the customer should not
pay invoices due, when the term of credit has expired, or when the
financial circumstances of the customer should deteriorate following the
conclusion of the agreement or when Erbslöh should receive unfavorable
information pertaining to the customer which query the solvency of the
customer, Erbslöh shall be justified in taking measures to procure the
entire residual amount from the customer and via an amendment of the
terms concluded advance payment or collateral security or immediate
settlement of all its claims in the case of executed performance which
are based upon this legal relationship. This shall apply, in particular,
if the customer does not meet his payments, or a cheque from the
customer is dishonored, a bill of draft furnished by the customer should
not be redeemed, a bankruptcy process relating to the assets of the
customer has been petitioned or initiated or when insolvency proceedings
have not been initiated due to insufficient assets.

IV Time of delivery and performance – Default

Determined delivery schedules shall possess only an approximate
validity if a fixed delivery date has not been concluded in writing.
However, when Erbslöh has exceeded determined delivery schedules due to
justifiable circumstances, the customer shall have the option to
withdraw from the agreement after an additional respite following the
fruitless expiry of a reasonable period defined by the customer. The
withdrawal from the agreement must be furnished in writing.
Erbslöh shall only be in default following the expiry of the reasonable
additional respite of time. In cases of Force Majeure (Act of God) and
other unforeseeable, extraordinary circumstances, which cannot be
influenced by Erbslöh such as e.g. disturbance in operation as a result
of fire, water and similar circumstances, breakdown of production
systems and machinery, exceeding the term of delivery or failure to
deliver on the part of suppliers together with interruptions in
operation due to a shortage of raw materials, energy or working force,
strikes, shut-out, problems with the acquisition of transport, traffic
disturbance, official administrative measures, Erbslöh – as far as
Erbslöh is hindered to fulfill its obligations not due to its own fault –
shall be entitled to postpone delivery or performance until the
extraordinary circumstances have been alleviated and shall be granted a
reasonable respite. If delivery or performance should be delayed by more
than one month hereby, both Erbslöh as well as the customer shall be
entitled to furnish written notice of withdrawal from the agreement
under the ruling out of claims to indemnification with regard to the
bulk amount influenced by the disturbance in delivery.
3. In every
case of default the liability of Erbslöh to pay compensation is limited
by the stipulation of the regulations in Section VIII No. 1 to 6.
Erbslöh is entitled to furnish partial deliveries or performance within
the scope of the agreed times of delivery and performance if this is
acceptable to the customer.

V Passing of risk – Handling of packaging

In as far as no deviating provisions have been defined between the
parties in writing or such provisions are shown in Erbslöh’s actual
price list, the goods shall be picked up by the customer at Erbslöh’s
premises on his own costs. The risk of accidental perishing, loss or
destruction and of incidental deterioration of the object of delivery
passes to the customer in the moment of the handing over of the goods
(even in case of deliveries which have been insured against transport
damage by Erbslöh).
2. The above provision concerning the passing of
risks shall also apply in the case when Erbslöh is organizing the
transport for the customer and is paying or laying out for transport
costs and insurance. In this case the passing of risk to the customer
shall be at the moment of handing over the goods to the forwarding
3. The return of product packaging is governed by the rules of
the Verpackungsverordung (German Regulation on Packaging) according to
the following provisions. We accept the return of used and completely
emptied sales packaging (Verkaufsverpackungen) delivered by us to an
end-user, as well as the return of additional packaging (Umverpackungen)
in case the end-user has requested the additional packaging to be
handed over, both at the cost of the end-user. The aforesaid packaging
will be accepted for return at our factory or warehouse, or, if closer
to the end-user, at a site of third party denominated by us, who will
accept the return of the packaging against adequate compensation. We
accept the return of used and completely emptied sales packaging
delivered by us to a distributor, as well as the return of additional
packaging in case an end-user has requested the additional packaging to
be handed over, both at the cost of the distributor, unless the
distributor does itself partake in the Dual System. Otherwise, the
distributor has to dispose of the aforesaid packing. In case of an
accepted return of packaging to us by a distributor, the regulations
under sent. 3 above (point of return) apply accordingly.

VI Customer obligations – Reservation of title

Erbslöh shall retain title to the delivered products until the entire
payment of the purchase price and all pending additional, current or
future demands resulting from business relations with the customer has
been settled. The settlement of the purchase price in an outstanding
invoice and the acceptance of the balance shall not affect the
reservation of title.
2. The customer shall be obliged to treat the
purchased goods carefully, in particular he shall be obliged to insure
the goods at purchase price against loss and damage and destruction, e.
g. against damage caused by fire, water and theft at his own costs. The
customer shall cede his claims resulting from the insurance policies to
Erbslöh at once. Erbslöh shall accept the assignment of the claims
3. The customer may neither pledge nor give as a security
the goods for which Erbslöh has the reservation of title. However, he
shall be entitled to sell the delivered goods within the scope of a
correct business transaction in accordance with the following terms. The
previously mentioned justification shall not hold in as far as the
customer transfers or pledges claims against his contractual partner,
resulting from the resale of the goods, to a third party or has
concluded an effective prohibition of assignment in advance.
4. The
customer shall immediately assign to Erbslöh all – including future and
contingent – accounts receivable to be acquired from a resale of the
goods delivered by Erbslöh for the securing of the fulfillment of claims
dealt with in Section VI No. 1 together with all ancillary rights at a
sum of 110% gross of the value of the delivered goods which will take
precedence over the residual sum of his accounts receivable. Erbslöh
shall accept the assignment herewith.
5. As long as and as far as the
customer settles his payment obligations to Erbslöh, he shall be
entitled to the collection of claims assigned to Erbslöh within the
scope of the regular management. However, he shall not be entitled to
conclude an accounts correct agreement or prohibition of assignment with
his customers in relation to these claims or to transfer or pledge
these to third parties. If in opposition to regulation 2 an accounts
current agreement should exist between the customer and the purchaser of
Erbslöh's reservation goods, the previously assigned claim shall also
relate to the accepted balance as well as to the existing balance in the
case of insolvency of the purchaser.
6. On demand by Erbslöh, the
customer shall be required to establish the accounts receivable which he
has assigned to Erbslöh separately and to notify his debtors of the
assignment with the request to pay all outstanding invoices to Erbslöh
up to the value of the claims to the customer. Erbslöh shall be entitled
to notify the debtors of this arrangement at any time and to collect
the claims, if necessary. However, Erbslöh will only make use of this
authorization if the customer fails to meet his financial obligations or
is in default, or when an insolvency process has been initiated against
the customer, or the customer ceases to pay the invoices. If one of the
aforementioned cases should arise, Erbslöh can demand that the customer
notifies Erbslöh of the assigned claims and the debtors thereof in
detail and furnishes all relevant information pertaining to the
collection of the accounts receivable and shall hand over the respective
7. In case of seizures or any other interference of third
parties, the customer shall immediately (without undue delay) inform
Erbslöh in writing in order to enable Erbslöh to react in an appropriate
manner and, if necessary, to bring an action according to § 771 Code of
Civil Procedure.
8. Erbslöh shall be obliged to release all
securities furnished by the customer, if he required, in the event when
realizable value of the securities should exceed Erbslöh's account
receivables from the customer by more than twenty percent (20%).
In the case of customer behavior which is contrary to the terms of the
agreement, in particular in case of default of payment exceeding ten
percent (10%) of the balance due for a not insignificant period of time,
Erbslöh – irrespective of further outstanding or pending (compensation)
claims – shall be entitled to withdraw from the agreement and demand
return of the goods delivered. Erbslöh shall be authorized to reprocess
the returned goods in the required manner. The profits resulting from
the reprocessing of the goods must be credited to the outstanding
accounts payable to Erbslöh by the customer – minus the appropriate
reprocessing expenses.

VII Duties on receiving of incoming goods – Rights of customer in case of non-conformity

The customer is obliged to subject the delivered goods to the customary
receiving control on receiving. He must apply the care of a regular
businessman in the course of such inspections.
2. Obvious defects,
delivery of the wrong goods, and deviation in quantity should be
reported to Erbslöh by the customer immediately (without undue delay),
or must be reported in writing within seven (7) days, at the latest from
the receiving of the goods. Concealed defects must be reported to
Erbslöh in writing within a period of three (3) days following the
discovery of the non-conformity. Notice of concealed defects of quality
or quantity shall be excluded and shall be deemed belated after three
(3) months beginning with the passing of the risk to the customer
according to Section V No. 1, as far as the concealed defects were
reasonably recognizable. In case of a belated or not appropriate notice
of defect according to Section VII, the customer shall loose all rights
to indemnification, except if the defect was fraudulently concealed by
3. In the case of non-conformity in goods supplied by
Erbslöh, Erbslöh shall only be obliged to rework the goods or deliver of
goods free from defects (subsequent fulfillment of contractual
obligations). If Erbslöh is not prepared to carry out reworking or is
not in a position to carry out these measures, in particular due to the
fact that the period required for these measures could be prolonged for
reasons for which Erbslöh is responsible or if the reworking or
fulfillment of the obligations should not succeed for other reasons, the
customer shall be entitled to withdraw from the contract or to demand a
reduction of the purchase price. A reworking measure shall be deemed to
have failed following the third unsuccessful attempt, if no other
measures have been determined due to the nature of the measures. If the
customer has incurred damage or suffered from futile expenditures
resulting from non-conformity in goods delivered by Erbslöh, the
liability of Erbslöh in this instance is defined in Section VII No. 1,
Section VIII No. 1 to 6 and Section IX.

VIII Rights and obligations of Erbslöh

A liability on the part of Erbslöh for damages or futile expenditures –
irrespective of the legal basis – shall only arise in the case where
the damage or the futile expenditure
a) have been caused by Erbslöh
or by one of their authorized personnel or subcontractors by means of
culpable violation of a significant contractual obligation or
b) are due to a grossly negligent or intentional violation of obligations on the part of Erbslöh or one of their subcontractors.
In compliance with Section VIII No. 1 Letter a) and b) Erbslöh shall
not be liable for damage or futile expenditures, which have been caused
by consulting measures or information provided which were not settled
separately, but solely in case of intentional or grossly negligent
breach of obligations, in as far as the breach of duties has not led to
material defect according to § 434 BGB of the goods delivered by
3. If Erbslöh should be liable for the violation of a
fundamental contractual duty in compliance with Section VIII No. 1
letter a), without evidence of gross negligence or intent, the liability
to compensation shall be limited to the foreseeable and typically
arising damage. In this case Erbslöh shall not be held liable for loss
of profit to the customer and also not for unforeseeable consequential
damages. The previously mentioned limitations in accordance with
regulations 1 and 2 are equally applicable for damages resulting from
gross negligence or intent on the part of Erbslöh personnel or
authorized persons.
4. Erbslöh shall not be liable for consequential
loss of the customer, which is due to the customer due to assertion of a
claim to contract penalties of a third party.
5. If Erbslöh shall be
liable for the infringement of a fundamental contractual obligation in
compliance with Section VIII No. 1 letter a), without evidence of gross
negligence or intent, their liability is limited to the sum of 1,0 Mio.
Euro per event of damage. Erbslöh shall be obliged to conclude and
maintain an insurance policy to cover claims of at least 2.5 million
Euros – maximized in duplicate in the policy year.
6. The liability
limitations mentioned in Section VIII No. 1 to 3 shall not apply if
Erbslöh's liability is conclusive in compliance with the regulations
contained in the Product Liability Law, or when claims have been raised
due to loss of life, injury to body or health, or when Erbslöh has
furnished a warranty; Erbslöh shall only be liable for such damage which
is covered by the warranty.
7. An extended liability to the payment
of compensation other than defined in Section VIII No. 1 to 4, is
excluded, irrespective of the nature of the valid claims. This
especially applies to damage claims resulting from negligence in the
course of conclusion of the agreement in compliance with § 311 Section 3
BGB, positive violation of contractual duty in compliance with § 280
BGB or due to claims in tort in compliance with § 823 BGB.
8. In as
far as the liability for damages is excluded or limited in compliance
with Section VIII No. 1 to 5, this shall also apply in relation to the
personal liability for damages of the staff, personnel, colleagues,
representatives and subcontractors as well as vicarious agents employed
or engaged by Erbslöh.

IX Limitation of claims

Customer claims pertaining to defects in goods delivered by Erbslöh –
shall be limited to a period of one (1) year from the transfer of
2. The aforementioned one-year limitation is not applicable
in case of (1) intention or fraudulent concealment of a defect (2) in
case of deviant content of an Erbslöh guarantee according to § 443 BGB
and (3) in a case that was used according to its common application for a
construction and caused the defectiveness of the construction.
The one-year limitation mentioned under No. 1) is in addition not
applicable in case of claims for damages due to defects in case the
damage is caused by gross negligence of a legal representative or
manager of Erbslöh. Also, it is not applicable in cases of personal
injuries or Erbslöh is liable due to a tort.
4. The one-year
limitation for rights on defects is further not applicable to defects,
which consist of a right in rem or a right of a third party laid down in
the title register; in such cases the limitation is for 3 years.
The legal regulations for the limitation of possible contribution claims
acc. to § 479 BGB as well as for limitation and preclusion periods acc.
to the product liability law remain unaffected.

X Assignment and Transfer of Claims

obligations of Erbslöh or claims raised against Erbslöh, in particular
resulting from non-conformity in products delivered by Erbslöh or from
the breach of contractual duties on the part of the Erbslöh may not be
completely or partially transferred or pledged to third parties without
the explicit written agreement of Erbslöh; § 354 a of the
Handelsgesetzbuch (Code of Commercial Law) shall be untouched by these

XI Place of performance – Place of jurisdiction – Applicable law – Trade stipulations

Place of performance and sole place of jurisdiction for all claims
between Erbslöh and the customer is Wiesbaden. However, Erbslöh shall
also have the right to initiate legal proceedings against the customer
in the District Court at the place of jurisdiction of the customer.
Exclusively the legislation of the Federal Republic of Germany shall
apply to the legal relations between Erbslöh and the customer. The
application of regulations pertaining to the Unified international
Purchase Laws (CISG – UN Purchase Law) and the German Private Law is
explicitly excluded.
3. In as far as trade stipulations in compliance
with International Commercial Terms (INCOTERMS) have been concluded,
the latest edition of the INCOTERMS shall be valid (currently INCOTERMS®

XII Final provisions
1. Should one of the above
mentioned provisions be invalid, partially invalid or excluded by a
special agreement, this shall hereby not affect the validity of the
remaining provisions. The parties are obliged to exchange invalid
provisions against valid provisions which legally reflect best the
economic spirit and purpose of the invalid provision. Same applies to
contract gaps.
2. Erbslöh will store the data of its customers within
the scope of the mutual business relations in accordance with the
legislation of the Federal Republic of Germany relating to data